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

I rise to speak on the Native Title Amendment (Technical Amendments) Bill 2007. This bill makes a raft of changes to Australia’s native title regime. I will not have the opportunity to touch on all of those changes in detail, so I will touch very briefly on the provisions of the bill before I proceed to outline Labor’s support for the bill and to articulate some of the concerns we have.

Before I do that, I would like to thank the government for moving significantly towards Labor’s position on this bill. I am sure that is the sort of praise they do not often get. The government’s amendments have picked up two of Labor’s key concerns about this bill. They are, firstly—and this is the view of the Senate Standing Committee on Legal and Constitutional Affairs—that the National Native Title Tribunal, rather than the registrar, hear appeals against decisions of the registrar not to register an application and, secondly, that the Federal Court retain the role of determining prescribed bodies corporate and that this role not be taken over by regulation, which is appropriate and was the view expressed in the minority report by Labor senators. I will touch on these two areas again in a moment, but Labor still has a number of minor concerns about this bill and I will go to those this evening.

Before I do that, I note that this bill, and the amendments which the government is moving, really does underscore the value of committees as part of the whole Senate process. The committee that examined the bill made a number of recommendations, and I will take the chamber to these a little further on. Also, Labor made a number of recommendations in the minority report, as I have noted. The government has now moved amendments which would put into effect two of those recommendations. It is a sensible position that the government has now adopted in agreeing to those recommendations. It is helpful when the government is prepared to take up sensible amendments to improve its legislation. Rather than commend the government, I note that it has done that and I recognise that it also joined in the committee process itself.

Returning to the bill, I will firstly provide a short overview. Schedule 1 will introduce the majority of the changes in this bill. These include amendments to the process for future Indigenous land use agreements and the making and resolving of native title claims, changes to the obligations of the registrar and a range of other changes that I will not have time this evening to go to in any detail.

Schedule 2 simplifies a range of procedures relating to representative Aboriginal and Torres Strait Islander bodies, ensuring that legal obligations on those bodies are not duplicated, improving processes for reviewing decisions, and clarifying the process for transferring documents from a superseded body to a replacement body.

Schedule 3 introduces a range of amendments to the operation of prescribed bodies corporate. It will close a loophole relating to the placement of these prescribed bodies corporate with other PBCs and prescribe a regime for the charging of fees by those prescribed bodies corporate.

Schedule 4 is composed entirely of minor technical amendments. The title of this bill goes to ‘technical amendments’, and the bill also has a technical amendments schedule within it. I do not see any need to go to those this evening.

Schedule 5 is a new schedule to the bill which has been introduced by the government in a later set of amendments. The explanatory memoranda state that this schedule ‘would rectify a drafting oversight in the transitional and application provisions of the Native Title Amendment Act 2007 (2007 Act) relating to the dismissal of unregistered claims’. Again, these appear to be mainly ‘technical amendments’, which again go to the title of this bill.

As I said earlier, and as my colleagues stated in the other place, Labor supports the vast majority of the changes in this bill and we will be voting for them, as they are technical amendments designed to streamline and improve the operation of the Native Title Act rather than to radically alter or amend it. In addition, the government moved towards Labor’s position in two key areas which I outlined earlier. This is also of value and underpinned how Labor would address this bill. However, there are still changes in this bill which we do not agree with and which we believe could be clarified and improved in the best interests of all those who will have to operate under this scheme.

I will start with a concern that was identified in the submissions to the Senate committee—that is, the new fee system that is proposed in schedule 3 of the bill. Labor can certainly understand the arguments in favour of having a fee regime. The bodies are performing a statutory function and, as such, it is reasonable to expect at least some level of statutory prescription of fees. According to the bill, the scheme would work in this way. A registered native title body corporate would be entitled to charge a fee for the cost it incurs for certain negotiations, including negotiations for a right to negotiate an agreement or its equivalent under a state or territory scheme, or negotiations for an Indigenous land use agreement. A body corporate would be entitled to charge fees for costs it incurred in these negotiations. There are a limited number of persons of whom a body corporate cannot charge a fee, and they are set out in proposed section 60AB(4) of the bill. There are also certain types of negotiations for which a body corporate would not be entitled to charge a fee and the ability prescribed by regulation or other circumstance for which a fee cannot be charged, which is sensible.

Of course, concerns about this bill were raised in submissions to the inquiry of the Senate Standing Committee on Legal and Constitutional Affairs that the proposed fee scheme represented a restriction rather than a facilitation of the ability for bodies corporate to charge fees. The Department of Families, Community Services and Indigenous Affairs, in response, indicated otherwise. In evidence given at the Senate inquiry, their representatives argued as persuasively as they could that the statutory bodies are by law required to have either explicit or implied authority to charge fees. Having looked at the evidence of the department on this matter, Labor will not oppose proposed section 60AB.

However, the subsequent proposed section, 60AC, is not, quite frankly, good law. We call on the government to have a closer look in dealing with this area. We think the problems with proposed section 60AC revolve around the fact that it provides that a person who has been charged a fee may go to the registrar to obtain an opinion about whether or not the fee is payable. The registrar then gives an opinion, which may agree or disagree with that fee being payable. If the registrar decides that the fee is not payable, that opinion is binding on the body corporate. The government, in its latest round of amendments, has moved, as I said earlier, technical changes to this section to clarify that the registrar always retains the discretion to not give an opinion. This section also provides that the regulations may set out the scheme in greater depth. It would certainly be helpful if that were available. Usually these matters come later, but, in any event, if the department turns its mind to ensure that the regulations ensure a smooth operation in this area, it would be helpful.

In any event, though, it is our view that there are still quite a few unanswered questions about the fee system that at this stage preclude the ability for Labor to wholeheartedly give it a tick. These questions include—and these may be matters that we can raise in committee: is there a right of merit review for a native title body that believes that the registrar may have made an incorrect decision; will the regulations set fee scales; what procedures will the registrar have in place to assess the matters that are brought before them; what assurances are there that they will make consistent decisions; will precedent be relevant; will it be based on only merit; will it be the practice of the registrar to give an opinion which includes what they think might be an appropriate fee or will they simply provide a yes or no answer; and, will they provide reasons for their decisions and will those decisions be publicly available? In addition: if so, will it eventually evolve into a situation where the registrar effectively acts as a de facto agency which sets fees? Will they be given that authority at some point or will the body of decisions that are made point to the registrar providing, in fact, an opinion method of setting fees? Other questions of this nature present themselves and the department and the minister need to be able to answer these questions before Labor can give this a tick.

We understand why such a scheme is necessary, but we do not believe that a fee scheme provides certainty for all stakeholders. If the eventual aim is to ensure there is certainty, that certainty is not apparent on the record here. However, we will not move to strike out either section from this bill, because of the complex nature of the way in which the bill has been put together, and because, in essence, it is a technical amendment to a provision.

Proposed section 60AB is necessary to allow the statutory authority to charge fees, but it is incumbent upon the government and the minister to develop a workable system and bring that back before parliament, certainly by way of regulation. It is not our role in this instance to try to come up with an alternative model that is workable; it is really incumbent upon the government to make sure that those matters that I have raised as concerns are addressed appropriately and that it certainly works reasonably for the parties and the stakeholders, because that is ultimately where we want to be. We want to ensure that the stakeholders have certainty, that the fees that are charged are reasonable and that everybody knows the process. Therefore, I repeat the request that the government, in truth, takes this away and devises a proper and more comprehensive process for the review of fees that sets out the rights of each participant and how they might exercise those rights. I appreciate that will not happen. I appreciate that the department and the minister are not going to accede to that, but I think it is still incumbent upon the government to put its case and ensure that it does work.

A second area of some minor contention in this bill relates to the provisions in the act which deal with cases in which applicants are found to be not properly authorised. As senators in this chamber may know, certain types of native title claims and applications must be made by a person who has been properly authorised. The problem under the current regime is that there is no clear indication of what would happen if it became clear during the proceedings that the applicant was not properly authorised. The proposed scheme—which we support, as I have said—would fix and clarify this situation. It would allow for the court to make an order that evidence must be produced by an applicant to show that they were authorised to make the application. If the court determined that the person was not authorised to make the application, a range of orders would be made. The court would also be entitled to continue to hear and determine the application if it believed that such a course of action were in the interests of justice.

Labor supports these provisions. I note from submissions to the Senate inquiry that these provisions are supported and welcomed by the stakeholders. However, one suggestion that was made in submissions which we think has merit—and it is never too late for the government to pick it up—is that a person who is making an application to the court for an order to produce evidence is required to show cause as to why it should be made. This would help to make sure that such applications are not open to abuse. I will give the government an opportunity to have a second think about that. I foreshadow that I will move amendments in the committee stage to achieve that.

Another area of difficulty with this bill, minor as it may be, relates to the potential for non-Indigenous persons to be members of bodies corporate which oversee native title rights for native title holders. Native title is an area which is distinctly Indigenous and is based on Indigenous customs and laws. It is appropriate that this section be clarified to make sure that only corporations with solely Indigenous members are entitled to become prescribed bodies corporate.

Turning to the right of review—and I think my colleague Jenny Macklin flagged in the House another concern regarding the right of review—the bill before us today would introduce a right of review for persons who have had their registration refused. Initially the government proposed to give the right of review to the registrar. That would have meant that the same body that had originally refused the registration would be conducting the review. Submissions to the Senate inquiry indicated that it would be more appropriate for the scheme to allow the review to be conducted by the National Native Title Tribunal. Of course, that would mean allowing a fresh set of eyes to look over the application. The committee concluded that this was an appropriate change and made such a recommendation. In the latest set of amendments, the government has picked up the suggestion of the Senate committee, as I mentioned earlier. I thank the government for that. It is a sensible amendment and it has Labor’s support.

I will now turn to the proposed amendments that deal with and validate alternative state regimes. As the submission by the Human Rights and Equal Opportunity Commission pointed out, there are concerns that this section would act to retrospectively remove the rights of native title holders. As such, Labor believes that these items that relate to the validation of the alternative state regimes should be delayed pending consultation with native title holders.

Finally, I turn to the issue of default prescribed bodies corporate. The new provisions essentially allow for the appointment of prescribed bodies corporate in circumstances where no functioning body corporate has been nominated by the native title holder. This will mean that the functions that a prescribed body corporate normally undertakes will continue to operate in circumstances where for a variety of reasons they currently do not.

Originally, the Senate committee identified problems with this scheme, which were picked up in Labor’s minority report. The concern was that the regulations would allow the prescription of not only the types of bodies corporate that may be determined as the default PBC under the scheme but also the exact bodies corporate. The department indicated to the committee that this was not intended to be the case and that it did not believe that the powers would ever be exercised by a body other than a court. Labor picked up these comments in its minority report. I note that the government—perhaps taking a belt-and-braces approach—has also moved to rectify these concerns by foreshadowing amendments to deal with them. Again, I thank the government for at least taking those matters seriously and fixing them up.

Despite the concerns I have outlined, I indicate that Labor supports this bill. We do believe that it can be a positive development towards cutting down the time it takes for native title matters to be resolved, which is far too long at the moment. I think that everybody recognises that and I think it is in everybody’s interests as well that we cut down the time used in making determinations. If the technical amendments go some way in granting certainty for stakeholders, I think they are worthy of support. Having both certainty and a streamlined system—although I am not convinced it is as streamlined as it could be—will ensure that decisions can be made quicker by allowing the greater use of the system in the exercise of people’s rights earlier and with some greater certainty.

I foreshadow, of course, that Labor will move amendments in line with the issues I have outlined. We do so because we believe that these will improve rather than hinder the operation of the bill. When the amendments are moved in the Senate, I hope the government will—perhaps I will put it more strongly than that: I think the government should—look at them in greater detail and support them because they will improve the operation of the scheme in more general terms than this bill currently does.

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

Senator Ludwig has outlined most of the detail of the Native Title Amendment (Technical Amendments) Bill 2007, so I will not repeat all of that. I would note that the government have circulated a number of amendments which respond to much of the report into the legislation by the Senate Legal and Constitutional Affairs Committee, and I welcome that. These days I am regularly critical of the lack of interest by the government on many occasions in the Senate committee process, the ridiculously truncated time frames that they apply and their lack of interest in the findings of the committee at the end of the process. So, in the interests of balance, I have equally to make note of it when they do listen and pay attention to the committee’s findings.

This is the second native title amendment legislation that has been before the Senate this year. To some extent that is a symptom of the fact that the native title regime has significant imperfections. I recognise and acknowledge that the amendments that have been introduced this year are intended to address these imperfections, and some of them do go some way to doing that, but I also suggest that a lot of them revisit some of the flaws in the original native title arrangements, particularly those that were put in place under the so-called 10-point plan and heavily modified but nonetheless passed by the Senate, not with my support but obviously with majority support, quite some years ago—in 1998 if my memory serves me correctly.

Linked into that are some of the institutional shortcomings with the native title arrangements. Senator Ludwig has alluded to some of those as well. Some of the other shortcomings are those that you can never fix with law; they are the ones to do with attitudinal shortcomings, particularly at the level of state and federal governments as well as some other key stakeholders. There has been too much foot dragging, there has been too much resistance and there has been too much apprehension and fear about what native title is. Indeed, there has been grotesque misinformation in some cases. I am pleased to say there is less of that than in years gone by.

Again in the interest of balance, I note that despite its shortcomings—and they are significant—native title is delivering results. I spoke in the Senate earlier today in the matter of public interest debate about the Productivity Commission’s latest report on the state of play with Indigenous equality in Australia. There were a range of indicators in a report they have released—their third report looking at indicators for Indigenous people with regard to health, education and other things—and one of the measures that has progressed is an increase in the areas that have had native title determinations or Indigenous land use agreements put over them. Not all of those land use agreements are perfect or ideal by any means, but many of them have delivered positive results for Indigenous people. Some of those that have not certainly still have the potential within them to do so, and the work still has to be done so there is potential there.

In that same speech today, I spoke about an agreement that has just been reached with the Queensland state government and traditional landowner groups on Cape York, putting in place a framework that should enable the prospects of further land use agreements and joint management over areas where native title has been recognised that have national parks put over them. Many of those things would not have been put in place or would have been harder to put in place if there was not that underpinning recognition of native title. Of course it should be noted that Far North Queensland—the Torres Strait Islands specifically, and with the Wik case on Cape York—is in one respect the birthplace of native title, in the legal sense at least. So it is delivering some results, slowly, torturously and with a lot of anguish in some cases. I do not dispute those flaws, but it is important to emphasise the positives that are being delivered in some areas. Inasmuch as these changes here today will go to further enhance those, then they should be welcomed.

I made some further comments in my contribution to the Senate committee report. I have no additional comments there, so I will not repeat those; I refer the Senate to those. As I said, the government has made some amendments that go some of the way to some of those and I have other amendments here that I can address when we get to the committee stage of the debate. It is an area that is important; it has moved out of the public and media spotlight and perhaps in some ways that is a good thing. It takes some of the heat out of it most of the time. We can focus on making it work better for everybody. But let us not forget that the primary aim of native title, certainly in the Democrats’ view, is to provide some mechanism for some limiting or halting of the damage done through dispossession of Indigenous peoples. That can never be fully reversed, of course, but it is a mechanism for halting further dispossession and, where feasible, for enabling the remaining title to be used for the benefit of Indigenous Australians.

To that end, I again implore governments, both state and federal, to do more in this area to facilitate the positive opportunities that native title represents for all Australians, not just for Indigenous people. We do still have examples, like the appeal that was launched by both state and federal governments against the Noongar land claim in Western Australia. I think the appeal against that was unfortunate. We have other circumstances in the Northern Territory. I have spoken a number of times in this place about delays in native title claims in south-east Queensland. It is not just a matter for those who are in northern areas or the remote parts of Queensland; there are claims in and around metropolitan areas, including in and around Brisbane and the Gold Coast. We have had the claim of the Githabul recognised in northern New South Wales, which is very positive. Their claim stretches over into southern Queensland—across the Mount Lindsay and Beaudesert areas—and it seems incongruous and unfortunate that it has been concluded on the New South Wales side of the border with some positive arrangements but there is still no recognition on the Queensland side. It is also important to once again repeat the call for further and more effective resourcing of Indigenous bodies; not just the native title representative bodies, but also the PBCs and others who wish to engage in the native title process. Streamlining and promptness are important—particularly when you are dealing with establishing connection to country, some knowledge of which resides in elderly people—but it should not be at the expense of a just outcome. We need to always guard against that.

I will speak further on my amendments in the committee stage of the debate. I think that at least some of the amendments that are made to this legislation, technical though they may be, should improve the operation of the native title regime for most stakeholders. While it is important to have it operate effectively for everybody, having it operate effectively and fairly for Indigenous people has to be a primary goal. On balance, these changes do that, but, again, to some extent it comes down not just to what is in the act itself but also to the attitudes of those who engage with it and the resources and capacities available, particularly to Indigenous people, to engage with it.

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

I would like to thank senators for their contribution to the consideration of the Native Title Amendment (Technical Amendments) Bill 2007. I also thank the Senate Legal and Constitutional Affairs Committee for its detailed consideration of this bill. The government has carefully considered the recommendations made by the Senate committee and has accepted a number of them. The government will accept recommendations 2, 3 and 5 of the Senate committee report. The government will also accept part of additional recommendation 2 from the minority report. I will discuss these recommendations further when I move government amendments to implement these recommendations. The government does not accept recommendations 1 and 4 of the Senate committee. I will deal with both these recommendations here to record the government’s response to the Senate committee’s report for the record.

With respect to recommendation 1, which was to amend proposed section 87A, the Senate committee recommended proposed subparagraph 87A(i)(c)(v) to:

... require consent from a party, with an interest in relation to land and waters in the determination area, where the Federal Court is satisfied that the interest is likely to be affected by the proposed determination.

The government does not accept this recommendation. Proposed section 87A is intended to streamline processes where there is an agreement amongst those who have an interest in the determination area and prevent those with an interest in other areas of the claim from blocking a consent determination over part of the claim.

The amendment to proposed section 87A in this bill directly implements recommendation 9 of the Senate committee’s report on the previous native title amendment bill. I note that, in its current inquiry, the committee received conflicting evidence from stakeholders. Some thought the amendment should go further; others felt the amendment was not necessary. The provision as drafted strikes an appropriate balance between the need to effectively resolve native title matters and the need to protect those with substantive interests within the claim area. Implementing this recommendation would create uncertainty as parties would not know prior to the determination being considered by the court which parties with an ‘interest’ are required to consent. This proposal would also encourage time-consuming debate about which parties should be required to consent.

With respect to recommendation 4 on the replacement of applicants, the Senate committee recommended amending the bill to provide a separate simplified process for the removal of an applicant who consents to removal or who is deceased or incapacitated where there is no requirement to replace that applicant. Whilst the Senate committee did not specify what that simplified process could be, a submission to the Senate committee suggested that the court could remove the person on receipt of affidavit evidence that the person is in fact deceased or incapacitated or consents to his or her removal. The government does not accept this recommendation. Changes to the applicant can raise complex issues, particularly in relation to authorisation of the claim. There is a risk that claims may not be properly authorised if the bill provided for a streamlined process of the kind proposed by the Senate committee. The bill already provides that applications can be amended to replace the applicant, including where one of the persons who is an applicant dies, becomes incapacitated or consents to his or her replacement or removal without undergoing a registration test again. However, the amendments in the bill will not negate the need for the court to be satisfied that the replacement applicant is authorised to be the applicant. Whilst a change to the applicant to remove a deceased or incapacitated person may seem uncontroversial, the effect of such a change may in fact be quite significant, particularly with large claimant groups. I commend the bill to the Senate.

Question agreed to.

Bill read a second time.