George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

The key amendments proposed by the Native Title Amendment Bill 2009 are to confer a central role upon the Federal Court to manage native title claims. The history of determination of native title and compensation claims is convoluted. The original scheme provided that all claims were made to the National Native Title Tribunal. If the terms could be agreed, the tribunal would make a determination in accordance with the agreement which, once registered, took effect as if it were an order of the court. If terms could not be agreed, the registrar of the tribunal would lodge an application in the Federal Court. However, in a decision of the Federal Court in 1998, Fourmile and Selpam Pty Ltd, this scheme was held to be invalid because it purported to vest judicial power in a non-judicial body.

The act was amended in 1998 to provide that every current claimant application became a proceeding in the Federal Court, and every new application was to be made to the court. As a general rule, the court referred each application to the tribunal for mediation in accordance with parameters set by the court. The act was further amended in 2007 to expand the tribunal’s powers and functions in relation to mediation to clarify that the court could not mediate while an application was before the tribunal.

The government complains that the existing regime, and its previous iterations, has resulted in the expenditure of millions of dollars in litigation and the creation of a backlog of claims that may take 30 years to clear. The proposed amendments will provide that both the court and the tribunal may mediate and will also provide that another ‘appropriate person or body’ may mediate. Management and oversight of the process will be the responsibility of the Federal Court. The intention is for ‘broader, more flexible and quicker negotiated settlements of native title claims’. The settlements may be broader because the court will be empowered to make consent orders on matters beyond native title.

Other proposals include: provisions for the court to rely upon an agreed statement of facts in making a consent determination, where the parties include a native title claim group and the main government party. Objections may be taken to the agreed statement by other parties within strict time limits; a simplified application process for recognition of native title representative bodies; and processes for extension, variation and reduction of areas to be amalgamated into one variation process. Representative bodies may apply for extensions of time to make submissions on variations.

The proposals are also intended to work with recent amendments to other legislation. In particular, amendments to the Evidence Act relating to hearsay and opinion evidence on Aboriginal and Torres Strait Islander laws and customs; and amendments to the Federal Court of Australia Act to allow the court to refer questions to an expert for inquiry and report.

This legislation follows the issue of a discussion paper and subsequent government consultation. The Federal Court has welcomed the proposals, subject to realistic targeting of resources and the availability of effective ADR practitioners. However, it is of the view that native title applications remain court proceedings and that ADR is only ever an adjunct to the proceedings. The timely and efficient resolution of claims relies much more heavily on effective case management than on the availability of ADR processes. The tribunal is much less sanguine about the proposals and has expressed concern that the discretions conferred on the court will make the process more fragmented, less efficient and more expensive.

These concerns were adverted to in the additional comments by the Liberal members of the Senate Legal and Constitutional Affairs References Committee in that committee’s report on this bill. They pointed out, and I agree with them, that unintended consequences may arise in a number of ways. In particular, they were concerned about the lack of regulatory standards as to the qualifications of the mediators and for the possibility of conflicts of interest arising. However, I have great faith in the capacity of the Federal Court to monitor its own processes. The concerns raised by my colleagues certainly justify close attention being paid to the processes being introduced by this bill.

In those circumstances, despite the shortcomings identified by the Liberal members of the committee—shortcomings that I am sorry to say were not identified by the government in preparing the legislation—the opposition will nevertheless support the bill in the hope that it achieves its key goal of clearing the backlog of native title claims. If those claims can be resolved by agreement rather than litigation, that is a development to be welcomed.

Finally, I also note that there are proposals from the Greens to reverse the onus of proof upon claimants to establish a continuous connection with the land. The reversal of the onus of proof in relation to such a dense, complex and contentious matter is an absurdity, and the coalition will not support such a proposal. Subject to those reservations, on behalf of the coalition, I commend the bill to the Senate.

Debate (on motion by Senator Ludwig) adjourned.