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

by leave—I table a supplementary explanatory memorandum relating to the government amendments to be made to this bill. The memorandum was circulated to the chamber on 12 June 2007. I move government amendments (1) to (40) on sheet ZA211 together:

(1)   Subclause 2(1), page 2 (table items 2 to 4), omit the table items, substitute:

(2)    Subclause 2(1), page 2 (table item 10), omit the table item, substitute:

(3)    Subclause 2(1), page 2 (at the end of the table), add:

(4)    Schedule 1, item 22, page 8 (lines 21 to 23), omit the item, substitute:

22  Subparagraph 24CL(2)(b)(ii)

Omit “subsection 190D(2)”, substitute “subsection 190F(1)”.

22A  After subparagraph 24CL(2)(b)(ii)

Insert:

                (iia)    the claim is accepted by the Registrar for registration as a result of notification given to the Registrar by the NNTT under section 190E on application under that section, where the application was made not more than 28 days after the notice under subsection 190D(1) was given; or

(5)    Schedule 1, item 31, page 10 (lines 9 to 11), omit the item, substitute:

31  Subparagraph 24FE(b)(ii)

Omit “subsection 190D(2)”, substitute “subsection 190F(1)”.

31A  After subparagraph 24FE(b)(ii)

Insert:

                (iia)    the claim is accepted by the Registrar for registration as a result of notification given to the Registrar by the NNTT under section 190E on application under that section, where the application was made not more than 28 days after the notice under subsection 190D(1) was given; or

(6)    Schedule 1, item 69, page 19 (cell at table item 5, 3rd column), omit the cell, substitute:

(7)    Schedule 1, item 69, pages 20 and 21 (cell at table item 8, 3rd column), omit the cell, substitute:

(8)    Schedule 1, item 69, page 22 (line 4), omit “item 9”, substitute “items 5, 8 and 9”.

(9)    Schedule 1, item 78, page 24 (lines 6 and 7), omit paragraph 64(3)(b), substitute:

             (b)    the NNTT is, under section 190E, reconsidering the claim made in the application; or

(10)  Schedule 1, page 26 (after line 14), after item 83, insert:

83A  Paragraph 66C(1)(c)

Omit “and”.

83B  Paragraph 66C(1)(d)

Repeal the paragraph.

83C  Paragraph 66C(2)(b)

Omit “paragraph 94C(1)(d)”, substitute “paragraph 94C(1)(c)”.

(11)  Schedule 1, item 88, page 27 (line 22), omit paragraph 84D(2)(b), substitute:

             (b)    on the application of a party to the proceedings; or

(12)  Schedule 1, item 88, page 27 (lines 25 to 32), omit subsection 84D(3), substitute:

        (3)    Subsection (4) applies if:

             (a)    an application does not comply with section 61 (which deals with the basic requirements for applications) because it was made by a person or persons who were not authorised by the native title claim group to do so; or

             (b)    a person who is or was, or one of the persons who are or were, the applicant in relation to the application has dealt with, or deals with, a matter arising in relation to the application in circumstances where the person was not authorised to do so.

Note:   Section 251B states what it means for a person or persons to be authorised to make native title determination applications or compensation applications or to deal with matters arising in relation to them.

(13)  Schedule 1, page 28 (after line 25), after item 91, insert:

91A  Paragraphs 94C(1)(b), (c) and (d)

Repeal the paragraphs, substitute:

             (b)    it is apparent from the timing of the application that it is made in response to a future act notice given in relation to land or waters wholly or partly within the area; and

             (c)    the future act requirements are satisfied in relation to each future act identified in the future act notice; and

91B  After subsection 94C(1)

Insert:

     (1A)    For the purposes of paragraph (1)(b), it is apparent from the timing of an application by a person for a determination of native title in relation to an area that it is made in response to a future act notice to which the current law applies if:

             (a)    the future act notice is given in relation to land or waters wholly or partly within the area; and

             (b)    the application is made during the period of 3 months after the notification day specified in the future act notice; and

             (c)    the person becomes a registered native title claimant in relation to any land or waters that will be affected by the act, before the end of 4 months after the notification day specified in the future act notice.

      (1B)    For the purposes of paragraph (1)(b), it is apparent from the timing of an application by a person for a determination of native title in relation to an area that it is made in response to a future act notice to which the pre-1998 law applies if:

             (a)    the future act notice is given in relation to land or waters wholly or partly within the area; and

             (b)    the person becomes a registered native title claimant in relation to any land or waters that will be affected by the act, within the period of 2 months starting when the notice is given.

      (1C)    The regulations may prescribe, for the purposes of paragraph (1)(b), other circumstances in which it is taken to be apparent from the timing of an application by a person for a determination of native title in relation to an area that it is made in response to a future act notice, including circumstances in which it is taken to be apparent in relation to a future act notice given under alternative provisions.

     (1D)    For the purposes of paragraph (1)(c), the future act requirements are satisfied in relation to a future act notice to which the current law applies if one of the following paragraphs is satisfied in relation to each future act identified in the notice:

             (a)    subsection 32(2) (which applies if no objection is made after the giving of a notice that the act attracts the expedited procedure) allows the act to be done;

             (b)    a determination is made under subsection 32(4) that the act is an act attracting the expedited procedure;

             (c)    native title parties have lodged one or more objections in relation to the act under subsection 32(3), but all such objections are withdrawn under subsection 32(6);

             (d)    an agreement of the kind mentioned in paragraph 31(1)(b) is made;

             (e)    a determination is made under section 36A or 38 that the act may be done, or may be done subject to conditions being complied with;

              (f)    a determination is made under section 36A or 38 that the act must not be done;

             (g)    a determination that the act may be done, or may be done subject to conditions being complied with or must not be done, is declared to be overruled in accordance with section 42;

             (h)    a circumstance occurs in which, under the regulations, the future act requirements are satisfied.

      (1E)    For the purposes of paragraph (1)(c), the future act requirements are satisfied in relation to a future act notice to which the pre-1998 law applies if one of the following paragraphs is satisfied in relation to each future act identified in the notice:

             (a)    subsection 32(2) of the pre-1998 law (which applies where no objection is made after the giving of a notice that the act attracts the expedited procedure) allows the act to be done;

             (b)    a determination is made under subsection 32(4) of the pre-1998 law that the act is an act attracting the expedited procedure;

             (c)    a copy of an agreement that the act may be done, or may be done subject to conditions being complied with, is given to the arbitral body under section 34 of the pre-1998 law;

             (d)    a determination is made under section 38 of the pre-1998 law that the act may be done, or may be done subject to conditions being complied with;

             (e)    a determination is made under section 38 of the pre-1998 law that the act must not be done;

              (f)    a determination that the act may be done, or may be done subject to conditions being complied with or must not be done, is declared to be overruled in accordance with section 42 of the pre-1998 law;

             (g)    a circumstance occurs in which, under the regulations, the future act requirements are satisfied.

      (1F)    The regulations may prescribe, for the purposes of paragraphs (1D)(h) and (1E)(g), other circumstances in which future act requirementsare satisfied.

      (1G)    The regulations may prescribe circumstances in which future act requirements are satisfied in relation to a future act notice given under alternative provisions.

91C  Subsection 94C(6)

Insert:

future act notice to which the current law applies means a future act notice to which the provisions in Subdivision P of Division 3 of Part 2 of this Act apply.

91D  Subsection 94C(6)

Insert:

future act notice to which the pre-1998 law applies means a future act notice to which the provisions in Subdivision B of Division 3 of Part 2 of the Native Title Act 1993 apply, as in force immediately before the commencement of the Native Title Amendment Act 1998 (including as it applies in accordance with Schedule 5 of that Act).

91E  Subsection 94C(6)

Insert:

pre-1998 law means the Native Title Act 1993, as in force immediately before the commencement of the Native Title Amendment Act 1998 (including as it applies in accordance with Schedule 5 of that Act).

(14)  Schedule 1, page 28, after proposed item 91E, insert:

91F  After section 96

Insert:

96A  Powers of Registrar—ILUAs and future act negotiations

                 The Registrar has the powers set out in Part 2.

(15)  Schedule 1, page 28 (after line 25), after item 91, insert:

91G  After subsection 108(1A)

Insert:

Reconsideration of claims

  (1AA)    The Tribunal has the functions in relation to applications for the reconsideration of claims made to the Tribunal under section 190E that are given to it under that section.

(16)  Schedule 1, page 28 (after line 25), after item 91, insert:

91H  After paragraph 123(1)(ca)

Insert:

           (cb)    the person who is to constitute the Tribunal for the purposes of reconsidering a decision of the Registrar not to accept a claim;

(17)  Schedule 1, page 29 (after line 27), after item 96, insert:

96A  Subparagraph 186(1)(g)(i)

After “the Registrar”, insert “or the NNTT”.

(18)  Schedule 1, item 97, page 29 (lines 28 to 30), omit the item, substitute:

97  Paragraph 190(1)(a)

After “under section 190A”, insert “or in response to notification by the NNTT under section 190E”.

(19)  Schedule 1, item 99, page 30 (lines 12 to 14), omit the item, substitute:

99  Paragraph 190(3)(b)

After “under section 190A”, insert “or in response to notification by the NNTT under section 190E”.

(20)  Schedule 1, item 102, page 32 (lines 15 to 38), omit paragraph 190A(6A)(d), substitute:

             (d)    the Registrar is satisfied that the only effect of the amendment is to do one or more of the following:

                   (i)    reduce the area of land or waters covered by the application, in circumstances where the information and map contained in the application, as amended, are sufficient for it to be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters;

                  (ii)    remove a right or interest from those claimed in the application;

                 (iii)    change the name in the application of the representative body, or one of the representative bodies, recognised for the area covered by the application, in circumstances where the body’s name has been changed or the body has been replaced with another representative body or a body to whom funding is made available under section 203FE;

                 (iv)    change the name in the application of the body to whom funding was made available under section 203FE in relation to all or part of the area covered by the application, in circumstances where the body’s name has been changed or the body has been replaced by another such body or a representative body;

                  (v)    alter the address for service of the person who is, or persons who are, the applicant.

(21)  Schedule 1, item 107, page 33 (line 27) to page 34 (line 17), omit section 190D, substitute:

190D  If the claim cannot be registered—notice of decision

        (1)    If the Registrar does not accept the claim for registration, the Registrar must, as soon as practicable, give the applicant and the Federal Court written notice of his or her decision not to accept the claim, including:

             (a)    if the Registrar does not accept the claim because the Registrar is notified by the NNTT under section 190E that he or she should not do so—a copy of the NNTT’s statement of reasons for its decision; or

             (b)    otherwise—a statement of the Registrar’s reasons for his or her decision.

Content of notice where failure to satisfy physical connection test

        (2)    If the only reason why the claim is not accepted for registration is that the condition in subsection 190B(7) (which is about a physical connection with the claim area) is not satisfied, the notice must advise the applicant of the applicant’s right to make an application to the Federal Court under section 190F and of the power of the Court to make an order in accordance with that section in respect of the application.

Statements of reasons must specify whether section 190B satisfied

        (3)    If the Registrar’s decision not to accept the claim is not in response to notification by the NNTT under section 190E, the Registrar’s statement of reasons for the decision must include a statement on:

             (a)    whether, in the opinion of the Registrar, the claim for registration satisfies all of the conditions in section 190B; and

             (b)    whether, in the opinion of the Registrar, it is not possible to determine whether the claim for registration satisfies all of the conditions in section 190B because of a failure to satisfy section 190C.

(22)  Schedule 1, item 107, page 34 (line 18) to page 35 (line 2), omit section 190E, substitute:

190E  If the claim cannot be registered—reconsideration by the NNTT

Application to reconsider a claim

        (1)    If the Registrar gives the applicant a notice under subsection 190D(1), then, subject to subsections (3) and (4), the applicant may apply to the NNTT to reconsider the claim made in the application.

        (2)    The application must:

             (a)    be in writing; and

             (b)    be made within 42 days after the notice under subsection 190D(1) is given; and

             (c)    state the basis on which the reconsideration is sought.

        (3)    The applicant may not make an application to the NNTT for reconsideration of the claim if the applicant has already made an application to the Federal Court under subsection 190F(1) for review of the decision.

        (4)    The applicant may apply to the NNTT for reconsideration of the claim no more than once.

Constitution of NNTT for purposes of reconsidering the claim

        (5)    For the purposes of reconsidering the claim, the NNTT must be constituted by a single member.

        (6)    The member of the NNTT who reconsiders the claim may not take any part in the proceeding in relation to the claim (including any review or inquiry in relation to the claim), unless the parties to the proceeding otherwise agree.

NNTT’s reconsideration of the claim

        (7)    In reconsidering the claim:

             (a)    the NNTT must have regard to any information to which the Registrar was required to have regard under subsections 190A(3) to (5) in considering the claim; and

             (b)    the NNTT may have regard to any other information which the NNTT regards as appropriate in reconsidering the claim.

Effect of certain notices

        (8)    If, either before the NNTT begins to do so or while it is doing so, a notice is given in accordance with:

             (a)    paragraph 24MD(6B)(c); or

             (b)    section 29; or

             (c)    a provision of a law of a State or Territory that corresponds to section 29 and is covered by a determination in force under section 43; or

             (d)    a provision of a law of a State or Territory that corresponds to section 29 and is covered by a determination in force under section 43A;

in relation to an act affecting any of the land or waters in the area covered by the application, the member reconsidering the claim must use his or her best endeavours to finish reconsidering the claim by the end of:

             (e)    in a paragraph (a) case—2 months after the notice is given; or

              (f)    in a paragraph (b) case—4 months after the notification day specified in the notice; or

             (g)    in a paragraph (c) case—the period, in the law of the State or Territory, that corresponds to the period of 4 months mentioned in paragraph 30(1)(a); or

             (h)    in a paragraph (d) case—the period at the end of which any person who is a registered native title claimant or registered native title body corporate has a right to be consulted about the act, to object to the act or to participate in negotiations about the act.

Otherwise, claim to be reconsidered as soon as is practicable

        (9)    In any other case, the NNTT must finish reconsidering the claim as soon as is practicable.

Notifying the Registrar of the NNTT’s decision

      (10)    The NNTT must notify the Registrar that the Registrar should accept the claim for registration if the claim satisfies all of the conditions in:

             (a)    section 190B (which deals mainly with the merits of the claim); and

             (b)    section 190C (which deals with procedural and other matters).

      (11)    In any other case, the NNTT must notify the Registrar that the Registrar should not accept the claim, and include in that notice a statement of the NNTT’s reasons for its decision. The statement of reasons for the decision must include a statement on:

             (a)    whether, in the opinion of the member who reconsidered the claim, the claim for registration satisfies all of the conditions in section 190B; and

             (b)    whether, in the opinion of the member who reconsidered the claim, it is not possible to determine whether the claim for registration satisfies all of the conditions in section 190B because of a failure to satisfy section 190C.

      (12)    For the purposes of subsection (10), sections 190B and 190C apply as if a reference to the Registrar in those sections were a reference to the NNTT.

      (13)    The Registrar must comply with a notice given to the Registrar under subsection (10) or (11).

(23)  Schedule 1, item 107, page 35 (line 7), at the end of subsection 190F(1), add “, provided the NNTT is not reconsidering the claim under section 190E at the time the application is made”.

(24)  Schedule 1, item 107, page 36 (line 5), omit “, in the opinion of the Registrar”, substitute “, in the opinion of the Registrar or, if the claim is reconsidered under section 190E, of the memb

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

There is one issue on which I probably need guidance from the chair. In the running sheet, government amendment (11) on sheet ZA211 is in conflict with opposition amendment (1) on sheet 5274. If it is in conflict then I do not want it dealt with together with amendments (1) to (40). When I look at what our amendment will do I can accept government amendment (11), because our amendment seeks to amend government amendment (11) to add words. So it would be logical if I sought leave, when I came to opposition amendment (1), to amend the amended amendment—if that makes sense. This underscores that we have a bill that has technical amendment upon technical amendment and error upon error, but that is the government’s doing.

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

We can accommodate that, Senator Ludwig. I will clarify that. In relation to the 40 government amendments that are before us, you are seeking to amend one of those amendments; is that correct?

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

That is right. If it stood as printed, my amendment would be amending the existing amendment. We can come to that in greater detail later, as long as we understand that that is the position that the opposition is seeking to take.

The Temporary Chairman:

I suggest that you move opposition amendment (1) on sheet 5274 as an amendment to government amendment (11).

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

I move opposition amendment (1) on sheet 5274:

(1)    Schedule 1, item 88, page 27 (line 22), after “proceedings”, insert “if that party has shown cause to the Federal Court as to why the order should be made”.

The issue that comes up in the amendments moved by the government underscores, as I have said, one of the problems in this area. The government has brought forward a technical amendments bill but, after a committee inquiry which generally would not be necessary for a technical amendments bill and in which there were a couple of recommendations that the government needed to pick up, we find that there is a whole raft of amendments, 40-odd in total, that have come afterwards. Certainly there were not 40 recommendations to the Senate inquiry. It shows the complexity of getting it right in this area.

I encourage the government, in getting it right, to ensure that when they deal with this they do not create a position in which certainty is not guaranteed to stakeholders by building technical amendments on technical amendments. One thing the government could do to alleviate some of the uncertainty that surrounds these issues is in the fee structure area. It sometimes comes down to money. I understand where the government wants to be with sections 60AB and 60AC in ensuring that there is an appropriate and reasonable fee structure and that it is reviewable, but it leads to a range of questions about whether there is a right of merits review for a native title body which believes that its registrar may have made an incorrect decision, whether the regulations will set fee scales and what procedures the registrar will have in place to assess the matters that are brought before it. It is important that decisions it makes are consistent and that they are followed but that they do not become a de facto way of setting fees by providing opinions which provide, when the stakeholders look at them, an idea of what fees they should be charging. These things should be set separately, and the system should ensure that they can charge reasonable fees and set them according to the requirements they have. I am hopeful that the government can provide an answer on those matters today as well.

It is also important to ensure that the opinions preclude a system evolving in which the registrar becomes a central—that is, a de facto—agency for setting fees for the relevant stakeholders. That would seem to be self-defeating. Labor would be encouraged to hear an answer to some of those questions today. If they cannot be provided today then Labor will accept written confirmation about how those matters will be dealt with at some not-too-distant point in the future so that stakeholders can understand how the system will work effectively for them to provide beneficial outcomes for all parties.

As I have said, with the way those two sections work, in truth I do not think the government has got it right. But we are willing to suspend our judgement and see how it works and see how the answers are given. That is why Labor will ultimately, as we have said, support the passage of this bill. We are not in the business or rewriting how your fee schedules and systems should work. It is a complex area; we acknowledge that. But we do accept that the onus is on the government to ensure that we are not revisiting it back here with further technical amendments to get it right. If you say that you can answer these questions, that the regulations will work, then we would like to hear that assurance, because what the stakeholders do not want to hear is that it will be a running amendment system until we get it right. That is not helpful to anyone. Certainty is the aim here.

I will not go through all of the details themselves other than saying—I cannot resist this; my apologies—that it does seem that a range of errors have been picked up, not only by the committee but also by the drafters. I am pleased that they have picked them up, although I think in this instance that you should look at the number of them—fixing a drafting error with amendment (20); technical corrections of drafting errors in amendments (26) and (27); further technical amendments to update; and another technical amendment at (38). The government should have paid a little bit more attention to the original technical amendments bill in the first instance, to get it right and to have a comprehensive position. That would have enabled and ensured that the committee system itself would have had all the technical amendments before it and would have been able to work through them systematically, as it did with the original bill, rather than having the piecemeal approach that the government has adopted by presenting it in this way. Labor did not seek then to have those technical amendments in the second round, if I could call it that, sent back to the committee. We do see the need for this legislation. We do think this area is in need of assistance to streamline the process. On that basis we are willing to suspend part—not all, but some—of our judgement as to how this system will work, to ensure that these amendments pass through the Senate during this sitting period and are available for the participants as early as possible. With those comments, Labor supports the second round of technical amendments.

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

With respect to the charging of fees by prescribed body corporates, can I say that the detail of the new scheme for such fees and charges will be dealt with by regulation—which is entirely unremarkable—and that the nuts and bolts of the practical operation of that system is to some extent for another day. With respect to the principal amendment, the government opposes this amendment. This amendment would seek to amend section 84D to specifically provide that a party making an application under subsection 84D(2) must show cause. As with all applications made to the court, I expect the court would only make an order that the applicant produce evidence of authorisation if it is satisfied there are grounds so to do. As the Senate Legal and Constitutional Affairs Committee noted in its report, the court is not required to make an order when an application is made. The court has a discretion as to whether an order should be made at all. The committee was satisfied that the court will be able to require the parties seeking the order to provide information as to why the order is so required.

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

In response to that, what the Labor Party believes is that certainty is more important than sometimes the process which has been outlined in the bill. Labor thinks that the legislation in this instance would benefit from that greater certainty being provided to the courts in that instance. It is disappointing that the government will not pick up the amendment to ensure certainty to ensure that the courts, when dealing with these amendments, have the ability to make orders that are necessary and expedient for the circumstances that the Labor Party has outlined in moving that amendment. Nevertheless, we do see the numbers in this place and know that the reality is that the government will prevail. But we do make the point that it would be helpful if the government did pick it up. We note that they are not going to pick it up, but as I said we are not going to die in a ditch over it. But we do hope that the government do not come back here with a technical amendment to deal with it in the future.

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

To add a comment on behalf of the Democrats on these amendments: for what it is worth, we would support Labor’s amendment, which obviously is not going to impact on its success. The government amendments, as the minister has said, reflect the recommendations of the Senate committee report. I acknowledge that and voice my appreciation for a government that does actually listen to Senate committee recommendations. I think they do go some way to modifying some of the problems that were identified by the inquiry. I expressed my support for them as well in my additional comments to the report.

I should also, whilst I am on my feet, indicate that my understanding is—I think I heard the minister say this in speaking to his amendments—that the government amendments go to the issue that the Democrat amendments (4) to (6) were seeking to address regarding prescribed body corporates. If I am correct in that—I am noting a nod from the minister, so I foreshadow that I will not proceed with Democrat amendments (4) to (6) as I think they are basically addressed by the amendments the government has put forward.

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

(4) and (6), not (4) to (6).

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

We will deal first with opposition amendment (1) on sheet 5274, which actually amends government amendment (11) on sheet ZA211. The question is that opposition amendment (1) be agreed to.

Question negatived.

The Temporary Chairman:

The question now is that government amendments (1) to (40) on sheet ZA211 be agreed to.

Question agreed to.

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

The Democrats oppose schedule 1 of the bill in the following terms:

(1)    Schedule 1, items 62 and 63, page 16 (lines 1 to 26), TO BE OPPOSED.

(2)    Schedule 1, item 127, page 41 (lines 5 to 11), TO BE OPPOSED.

(3)    Schedule 1, items 138 and 139, page 42 (line 31) to page 44 (line 33), TO BE OPPOSED.

These items go the issues of alternative state regimes, conjunctive agreements and validation of the South Australian regime. I touched on this in my additional comments to the Senate committee report, as did Greens and the Labor Party in their separate comments. This is based around concerns raised in the submission from the Human Rights and Equal Opportunity Commission to the inquiry. So it is not something I have plucked out of my head; it is based on information that was provided to the inquiry. I think all senators would acknowledge the expertise of the human rights commission and the genuine way in which it engages with Senate committee processes, including this one.

I note the Labor senators’ comment about items 62 and 63 of schedule 1, as well as items 127, 138 and 139. The concern about retrospective validation of invalidly done future acts does have a risk of undermining Indigenous confidence in the Native Title Act. It shows that, just by passage of an amending bill, at any stage we could retrospectively validate invalidly done acts. Retrospectivity about a future act starts to get a bit confusing in the terminology, but it is retrospective validation nonetheless. I agree with the comments of the commissioner and others that further consultation with native title holders regarding validation would be desirable in this particular case. The commissioner said in their submission that retrospective validation ‘has served to undermine Indigenous confidence in the act, and undermines public confidence in parliament’s respect for and commitment to the rule of law’. The principle of doing something that adversely affects the rights and interests of others, and then retrospectively validating that act in order to avoid the consequences of it being invalid, is one that we need to be careful of. Those are the reasons behind the position the Democrats are taking on those items.

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

Labor understands the position that has been put by the Democrats here. We are not minded to support them. We believe that the bill should pass in its present form. The issue is important though. Labor has said that the government should take a hard look at this area, and not move it, and it should then ensure that the native title holders are consulted. The government has clearly rejected that position and it is going to proceed without taking that course. It is the better course to take—to ensure that there are clear lines of communication between all parties and to ensure that the items that relate to the validation of the alternative state regime should have certainty. The government is not minded to take that course. The difficulty is that without those provisions you may have unintended consequences. Labor has not had an opportunity to look at that. The committee report ultimately does not provide any grounds on which Labor would support Senator Bartlett’s position. I think Senator Bartlett is aware of that. But I do understand the principle upon which he seeks to oppose items in schedule 1.

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

The government opposes the Democrat opposition to items in schedule 1. These changes would remove the provisions in the bill that put beyond doubt the validity of the current South Australian section 43 determinations in relation to mining and opal mining, which had the effect of replacing the Native Title Act ‘right to negotiate’ provisions with a ‘right to negotiate’ regime under South Australian legislation. I understand that the South Australian regimes have been operating effectively for over 11 years now. The Senate Standing Committee on Legal and Constitutional Affairs has noted its support for the enactment of these provisions, given that the amendments simply seek to place on a firm footing the understanding that parties have been operating in accord with to date.

The amendments in the bill will also provide for the inclusion in state or territory legislation of conjunctive agreement or expedited procedure provisions of the kind already included in the Native Title Act. Section 26D(2) and section 32, for example, would not in future preclude a determination being made under section 43 of the act.

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

The question is that items 62, 63 and 127 of schedule 1 stand as printed.

Question agreed to.

The Temporary Chairman:

The question is that items 138 and 139 of schedule 1 stand as printed.

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 amendment (2) on sheet 5274:

(2)   Schedule 3, item 5, page 57 (after line 7), at the end of section 59, add:

        (3)    The regulations must prescribe that a body corporate with members who do not meet the Indigeneity requirement specified in section 29-5 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 is not entitled to become a prescribed body corporate.

Of course, under the recent amendments contained in the Corporations (Aboriginal and Torres Strait Islander) Act 2006 there is scope for non-Indigenous persons to be members of Indigenous corporations, but as native title is a process which is connected so closely with Indigenous laws and customs it is Labor’s view that it is not appropriate that corporations with non-Indigenous members be eligible to be prescribed bodies corporate. The difficulty is that without that section the area is open. So I seek to close that to ensure that that is the outcome. I seek the government’s support for that.

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

The government opposes this amendment. The amendment would mean that only corporations whose members meet the indigeneity requirement of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 can become prescribed bodies corporate. Corporations with five or more members meet the indigeneity requirement if at least a prescribed percentage of their members are Indigenous. Regulations are yet to be made under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 prescribing this percentage. Therefore it would not be appropriate to limit the scope of regulations made under the Native Title Act dealing with prescribed body corporate membership by tying them, now and in the future, to regulations made under another act. The government has stated its intention to allow non-native title holders and non-Indigenous people to become prescribed body corporate members if—and I underline this—this is what the native title holders want.

The government has also clearly indicated that, regardless of a prescribed body corporate’s membership, only native title holders will have a right to be involved in making native title decisions. If the native title holders only want Indigenous people to be members of their prescribed body corporate they will be perfectly free to impose this requirement.

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

I think that was a very ordinary response to a particularly germane issue.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister for Industry) Share this | Link to this | Hansard source

Yes, it was cavalier.

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

I may not go that far. We have seen a range of amendments to this area of native title. I have built an argument around certainty for stakeholders, certainty for those who want to engage in the process and certainty that appeal systems are in place—that certainty should come out of the native title system. In addition, Labor has been seeking a much speedier outcome all up, because to date the government has not demonstrated an ability to ensure this process moves smoothly, cleanly and without technical problems, slow-downs and a range of other things. The government has not been able to ensure that in the native title area agreements are made and we move forward. The government has now set in train a process where I am not confident, and Labor is not confident, that you will find that this area is left for the native title holders—those people who hold the customs and laws of Indigenous people in their hands—so that they are able to seek to deal with their determinations and deal with their land in accordance with the native title legislation.

The government have addressed this legislation overall in a technical sense, but I think sometimes it takes more than that to ensure that this process works—and works effectively. The government are quite clearly not going to answer the questions that I asked earlier today. They are not going to provide the certainty that the stakeholders have asked for. The answer that the government provided earlier was that they will bring forward regulations—and that is not surprising. It is not surprising for the government to bring forward regulations after the bill has been moved, passed and gone on to be utilised.

It is not surprising, but when will that happen? Will those regulations deal with all of the matters that the Labor Party has raised? That is the germane issue that the government has failed to answer. We are yet to see what the regulations will do. True, they may be disallowable instruments, and we will have an opportunity to look at those again, but in that process we will not have an opportunity to ask questions in the committee stage, where the government has the onus on it to provide certainty for stakeholders. The government should take the opportunity during this committee stage to demonstrate that it is serious about improving the system, that it is serious about ensuring that all the stakeholders get a fair deal out of this and that the technical amendments go to ensuring that outcome. The government should ensure that it speeds up the process because no stakeholders think that the current progress has been fair for all parties—in fact, I do not think even the government thinks that.

Those are the complaints I make—and I make them seriously—not only about the way the government has addressed this amendment but more broadly about the overall process. It is not sufficient in this area for the government to deal with this process the way it has. If you look at the way the government did nothing for quite some time and hid behind the line that the system would work, you will see that it was not until the numbers built up to 600-odd outstanding cases that the government finally acted. It did not act in a comprehensive way, but it did act. We will now wait to see how it will follow through. We now find that there are technical amendments and more technical amendments that go to addressing it.

As I said during my earlier contribution to the second reading debate on the bill as well as in the consideration of it earlier this evening, Labor will support this legislation. However, I am suspending judgement on how it will ensure that the issues that I have raised are addressed—that we will end up with a speedier process and get certainty for the stakeholders. The stakeholders will benefit all round; it is beneficial legislation, but it is incumbent upon the government to make sure that that is the outcome of it.

Before I depart from this area, I reiterate the value of the committee process. What we heard earlier today was a government denying the Senate the opportunity to have a committee inquiry into this area of Aboriginal and Torres Strait Islander issues. It said that there was no requirement for a committee inquiry—it rejected the committee process, even a short one for that matter—to deal with this legislation because it wanted the legislation dealt with urgently. I do not think the reasons for urgency that were outlined by the government this morning stack up.

The government has the numbers in this place, so when it decides to allow the committee process to work, it will find that it can pick up recommendations that will improve the overall ability of the bill to achieve its purpose. When the government acts in the way that it did this morning, it denies itself the opportunity to achieve its objectives, which are to ensure that stakeholders and other parties to the legislation—those who have to work under it—have effective legislation, that the legislation will work and that it will not have to be brought back into the parliament for further technical amendments. With those short words—

Kim Carr (Victoria, Australian Labor Party, Shadow Minister for Industry) Share this | Link to this | Hansard source

Short!

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

I seem to have a gallery here. Madam Chair, if you can forgive them, the issues are important and do deserve consideration.

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

I thought I should make a few short comments to indicate support for the Labor amendment. Senator Ludwig has raised some valid points and has convinced me with the weight of the argument that he has put—

Opposition Senators:

Opposition senators interjecting—

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

with some surrounding noise. Nonetheless, I heard what he was saying and he made some valid points. The Democrats will support his amendment.

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

I am still pressing for a response from the government on the matters that I raised. I will not let that go. The government has not indicated a response to the issues dealing with section 60AB and 60AC and the way the fee structure will work. The government has said in a short-form way that it will deal with it in the regulation. What the government has not indicated is how it will address the range of issues that I have put on record today. Will the government say that these issues will be dealt with by regulation in due course?

It seems to me that not all of those matters that I asked about will be dealt with by regulation. But if the government’s response is that those matters will be dealt with by regulation then I will wait to see that regulation. We will have another opportunity to go through it should it be a disallowable instrument. So the short question is: can the government confirm that it will be a disallowable instrument, that it will bring it back and that it will deal with all of the matters that I have raised? If it is a disallowable instrument and it does not deal with all of those matters, we will have an opportunity to debate it again at that point.

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

There will not be a schedule of fees. There will be a regulated mechanism for the registrar to deal with fees.

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

The question is that opposition amendment (2) on sheet 5274 be agreed to.

Question negatived.

The Temporary Chairman:

Senator Bartlett, are you moving your amendments (4) to (6)?

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

No.

Bill, as amended, agreed to.

Bill reported with amendments; report adopted.