Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

The question is:

That the bill stand as printed.

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

I will ask my general questions first. This bill has been introduced twice; it was introduced previously during the 42nd Parliament but, as was pointed out earlier, it did not get dealt with. When the Attorney-General gave his second reading speech on this in 2009 he said:

… state governments have indicated that uncertainty in relation to native title can be a barrier to meeting housing and service delivery targets.

He noted:

This is creating delays.

In the second reading speech the Attorney-General made on the 2010 version, he said that there is a risk of creating delays. With all due respect, I appreciate that information was provided that the states say—this happened in the bill inquiry—that delays are being caused; my concern is, as I have articulated, that there have been delays in the provision of housing for decades. So what the government is saying now is: ‘There is a risk of delay’—after decades—‘and so now we are going to further diminish your native title rights because there is a risk.’ This takes away any power properly to negotiate, for example, where housing is provided in communities. And there are disputes in some communities about, for example, where staff housing is provided—because this also deals with the provision, as I understand it, of facilities and staff housing.

I have been into communities in Western Australia where there is a dispute about, for example, where staff housing is provided. What this allows for is the overriding of communities’ ability to say where that housing will be provided. I would like to know why a change was made to the second reading speech to take it from ‘it is causing delays’ to ‘there is a risk of delay’. If possible, I would like quantitative evidence of the delays—days or months. Has there been a comparison between what happens in these communities in WA and Queensland and what happens in the NT?

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

In terms of the specific question on whether there has been an analysis of the level of delay, I will take that away and hopefully get some answer back to you. But I think this bill is trying to address the absolute need for Indigenous housing—something that I am sure you do not disagree with. This bill attempts to ensure that the goal of delivering housing for Indigenous people is a priority, but it also recognises that consultation has to occur—of course that has to happen.

COAG is committed to delivering a large amount of money to deal with the incredible overcrowding—which you are aware of and I am certainly aware of in my part of the world. There is $5.5 billion over 10 years and that is a very large amount of money. We want to make sure that we can provide good-quality housing for Indigenous people in a reasonable amount of time.

In terms of there being analysis of delay, I will come back to you with an answer on that.

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

I do not want anybody taking away from this discussion the message that we are not fully committed to Indigenous housing—and I have been on the record dozens of times saying that.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

I’m not suggesting that, Senator.

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

I was not implying that you were—that was just in case. During the inquiry, we did ask for the provision of hard evidence that this is happening, but it was not given at the time. This is dealing with the issue in Western Australia and Queensland. Have there been attempts in those states to negotiate using ILUAs for the particular issues that we are talking about? Is there a demonstration that that process has failed? What sort of oversight will there be to ensure that the states are in fact negotiating in good faith? As you just said, there will be consultation. What role will the Commonwealth have in ensuring that that happens in good faith? I take it from your previous answer that the states will negotiate in good faith, the same as they are expected to do under an ILUA.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

I can give you some examples. When the bill was first proposed the negotiations in Western Australia for housing and other public works in one large and very overcrowded community with very high housing needs had been running for over two years, meaning that the construction of 20 houses for which funding had already been committed could not commence. Similarly, in two other Western Australian communities negotiations for police facilities and staff housing had also been ongoing for two years and had yet to be resolved. I think those examples do indicate that there was an attempt to conduct those negotiations in good faith, but they did not achieve the outcome of our shared desire for the delivery of much-needed Indigenous housing in that particular community.

I am advised that Queensland and Western Australia are currently building on sites that are not affected by native title under the National Partnership Agreement on Remote Indigenous Housing. This will not be the case, I understand, in future years. A 12-month process will not allow the states to meet their targets under the NPA. I hope that is of assistance.

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

I am wondering whether the Commonwealth actually spoke to the Aboriginal communities where the negotiations had been held up to find out why. I am sorry to say this but, in my opinion, state governments do not always negotiate in good faith. There may be other reasons—maybe justified reasons—why there were delays there. Did you seek to find out what the hold-ups were and whether they were justified?

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

In constructing public housing and infrastructure on Indigenous land it can be unclear whether there will be any impact on native title and whether compliance with the future acts regime is required. In many cases these dealings may not affect native title and therefore would not be future acts. However, state and territory governments have to undertake substantial and expensive due diligence to confirm this. To provide certainty and to reduce complexity, project components regularly comply with the future acts regime as a precautionary measure. This can mean delay in deciding how to progress a project and the adoption of cumbersome and lengthy procedures in an abundance of caution.

The government has consistently received advice from state governments that native title is likely to delay their ability to provide housing and infrastructure for Indigenous communities in a timely manner. Their experience has shown that delays in negotiating ILUAs can hold up delivery of public housing and infrastructure. Consequently, native title could be a barrier to meeting targets under the COAG National Partnership Agreement on Remote Indigenous Housing. There has been greater success putting in place secure tenure arrangements in communities on Indigenous-held land not subject to these uncertainties. I will come back to you on whether the Commonwealth engaged in discussions with Indigenous communities directly, outside of the negotiations that were happening between the state and those Indigenous communities.

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

I thank the minister for her answer. I remain concerned that the principal motivation for this is so that the government can override and not have to bother with the full process of consultation with communities. Is the minister or her government able to outline how this process will work if, in developing an ILUA, there is seen to be too long a delay? Has there been a time frame put in place for consulting communities and at what point will the government say, ‘Time’s up. We’ll make the decisions from here’?

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

In response to your previous question on the role of the Commonwealth in negotiating with Indigenous communities, I understand that it is our view that it is the role of the state to conduct those negotiations. I take your point about oversight but it is the role of the state in those circumstances to conduct those negotiations. I will come back to you on further questions.

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

That is one of my concerns. In Western Australia the state government has just said, ‘Time’s up for negotiation on James Price Point. We’re going to compulsorily acquire that land.’ My concern is that the state government may not give a sufficient time frame for communities to engage in the process properly. I am wondering what overview process there will be and whether you are talking to the states about a process to ensure that you are more comfortable with the fact that communities are being engaged with in good faith?

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

On the question of how genuine consultation will be achieved our government is committed to genuine and ongoing consultation with Aboriginal people, including native title parties. This bill provides notification and consultation-period requirements for a consultation report to ensure that state and territory governments undertake real consultation with native title parties when planning and developing public housing and infrastructure projects. The quality of the consultation will be controlled and monitored by a scrutiny of the consultation report and through intergovernmental agreements, including the national partnership agreements. This allows parties to be flexible, to ensure consultation is tailored for the particular circumstances of any one project. To further ensure appropriate process and to assist states and territories the bill includes a mechanism to enable the minister to issue guidelines on how such consultation should occur. This enables the minister to prescribe the requirements for genuine consultation in a flexible manner that takes account of developing needs and changing circumstances in the native title context.

In response to your question on time frame, native title holders, registered claimants and native title representative bodies are given an opportunity to comment on a project within two months from the date of notification. Native title holders and registered claimants also have the right to request further consultation with the action body about the project and potential impact on native title, and where consultation is requested, a total consultation period of up to four months is provided under the new process.

Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

Senator Siewert raised concerns about some uncertainty on whether or not native title would hold up the process. I acknowledge, as I think the government has, that when we accept these risks we need to be assured that whilst there may be some uncertainty around whether or not this process is a blockage to the building of houses, there is no uncertainty at all around the effects of not having the houses built. We certainly agree with government about that. I wonder if you are able to explain further the potential impact, particularly on the police and other staff housing. When you talk about ‘other staff’ what levels of amenity or facility are you talking about?

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

I know Senator Scullion would agree with us that the provision of police housing, in particular, on remote communities is absolutely essential. But as well as public housing the new process also covers the construction and operation of other public facilities such as medical clinics, schools, police stations, street lighting, water supply and electricity distribution. The bill also includes staff housing in relation to the public facilities provided under the new process. Providing adequate housing for community service staff is an important part of ensuring that there are sufficient staff to deliver services in Indigenous communities. It is an approach that recognises that community health and wellbeing depend on the practical availability of both service delivery infrastructure and essential community service staff.

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

by leave—I move Greens amendments (1), (3) and (4) on sheet 6179 together:

(1)    Schedule 1, item 3, page 5 (line 23) to page 6 (line 9), omit subsections 24JAA(4) to (6), substitute:

Act is valid, subject to right to negotiate

        (4)    If this Subdivision applies to a future act, then, subject to Subdivision P (which deals with the right to negotiate), the act is valid.

(3)    Schedule 1, item 3, page 8 (lines 23 to 34), omit the definition of consultation period in section 24JAA.

(4)    Schedule 1, page 9 (after line 4), after item 3, insert:

3A  After paragraph 25(1)(aa)

Insert:

           (ab)    acts covered by section 24JAA (which deals with public housing);

These amendments seek to protect the rights of native title holders to negotiate. I have articulated the arguments about our concern around the undermining of native title rights. This legislation does, we believe, take away the rights of native title holders to negotiate and it undermines the concept of fully informed prior consent. I will not articulate the arguments again. I have been through them and I do not want to hold up the chamber.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

The government does not support the amendments moved by Senator Siewert. The new process introduced by the bill balances genuine consultation with the need to ensure that urgently needed public housing and infrastructure projects can go ahead in a timely and certain way. The government does not consider the right to negotiate procedures to be the appropriate tool for the delivery of urgently needed public housing and infrastructure for the benefit of Indigenous communities on Indigenous held land. Where the parties cannot agree to an act going ahead within six months, the right to negotiate can lead to arbitration of the matter before the National Native Title Tribunal. The time involved in the right to negotiate process could substantially delay the delivery of urgently needed public housing and infrastructure to Indigenous people.

Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

The opposition will not be supporting the Greens amendments. as the Greens will no doubt be aware. Support for these amendments would in fact negate the intent of the government’s legislation. I would like to make a couple of comments. First of all, I acknowledge that it is not only this issue that is slowing down the building of houses, Senator Siewert. I have spoken about that often. Without berating them too much, not only this government but state and territory governments over time have found it very difficult to roll out both infrastructure and housing in what we would call a timely way. In this case, the government have found a pretty reasonable balance.

I know you say that the benefits provided appear, certainly from the evidence we had at the committee hearings, to be somewhat out of proportion to the potential loss of rights for that period of time. But I continue to support the government’s legislation, given that they have clearly given some thought to articulating a process of consultation—although it may not be an ILUA. I can cite an example, not with housing but with infrastructure, in the Western Desert last year. It was brought to my attention that we had a dialysis chair there. The only reason the dialysis chair had not been used for a long period of time was that the Central Land Council had not provided a permit to dig six metres across a public road to connect it to the existing power pole to enable telecommunications. There was no mischief from the Central Land Council, but it happened because putting in any infrastructure dictated this process. I commend the Central Land Council for their swift action when they were advised of the matter. Sometimes inadvertently these processes hold things up. They involve strict liability; we have to go down this path. The native title process is, as it should be, an exhaustive process that has exhaustive appeal processes. That is why this legislation is very important, given, as you acknowledge, the vital importance of us all striving to reduce the overcrowding in Aboriginal and Torres Strait Islander communities. I know you are a great champion of that, Senator Siewert. On balance, the reason that we do not support these amendments is that they remove the effect of the government’s amendment to the existing legislation.

As I said a little earlier, I think there is some uncertainty about whether native title would have an impact on this. The government have laid out an alternative process that seems to me to be quite reasonable. It gives people time but also puts an end to negotiations because, at the end of the day, these houses need to be built. If there are any blockages in the way, that will slow things down. We think, on balance, that it is absolutely, vitally important to remove any impediment. But, again, I do acknowledge that there are other impediments, through the state and territory governments, to the building of these houses.

Question negatived.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

The Greens oppose item 3 in schedule 1 in the following terms:

(2)    Schedule 1, item 3, page 6 (line 29) to page 8 (line 20), subsections 24JAA(10) to (18) TO BE OPPOSED.

The question is that item 3 in schedule 1 stand as printed.

Question agreed to.

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

The Greens oppose item 8 in schedule 1 in the following terms:

• (5)      Schedule 1, item 8, page 9 (line 22) to page 10 (line 7), item TO BE OPPOSED.

The Temporary Chairman:

The question is that item 8 in schedule 1 stand as printed.

Question agreed to.

Bill agreed to.

Bill reported without amendment; report adopted.