Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I was going to offer the minister the call first, although I see he is consulting with his advisers. When we reported progress before question time he had advised me out of left field on my amendment (4)—requirements for nominations and amendments relating to the way that this bill interacts with the Aboriginal Land Rights Act—that there was a possibility that the government might support the Greens amendment. I will pick up the thread there if that is not the case, but I thought I might give the minister the floor to just advise us to as to whether there is an update.

Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to this | Hansard source

I reluctantly have to advise the senator that the legal advice we received is that putting it in both acts would be very complicated and lead to potential litigation difficulties, so we cannot agree to the amendment. The practical effect is in terms of the rights established by the Northern Territory legislation, but our legal advice is that it would be counter-productive and cause difficulties if it were to be inserted as proposed in your amendment. My advice is that what you want to do will be achieved, but we cannot agree to be the amendment.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I thank the minister. That being the case, it probably makes sense to backtrack a bit from where we were earlier and move back to Greens amendment (4). I seek leave to move amendments (4), (5) and (12) on sheet 7037 together.

Leave granted.

I move:

(4) Page 6 (after line 11), after clause 5, insert:

5A Requirements for nomination by a Land Council

A nomination made under section 5, or taken to have been made under section 5, is of no effect for any purpose under this Act unless:

(a) the Land Council, in nominating the land as a potential site, has complied with the Aboriginal Land Rights (Northern Territory) Act 1976; and

(b) the nomination of the land as a potential site was made by the Land Council subject to its powers and obligations under the Aboriginal Land Rights (Northern Territory) Act 1976.

[nominations must comply with Land Rights Act]

(5) Page 6 (after line 11), after clause 5, insert:

5B Application of Schedule 2 to nomination by a Land Council

(1) Despite subitem 1(1) of Schedule 2, a nomination under section 3A of the old radioactive waste law which does not comply with subsection 5(2) is invalid and of no effect for any purpose under this Act.

(2) In this section:

commencement time means the time at which item 1 of Schedule 1 commences.

old radioactive waste law means the Commonwealth Radioactive Waste Management Act 2005 as in force immediately before the commencement time.

[additional requirements for continuing nominations]

(12)    Page 11 (after line 16), after clause 9, insert:

9A Requirements for approval

An approval under section 9, or taken to have been made under section 9, of land nominated by a Land Council is of no effect for any purpose under this Act unless:

(a) the Land Council, in nominating the land as a potential site, has complied with the Aboriginal Land Rights (Northern Territory) Act 1976; and

(b) the nomination of the land as a potential site was made by the Land Council subject to its powers and obligations under the Aboriginal Land Rights (Northern Territory) Act 1976.

[nominations must comply with Land Rights Act]

I suppose I should not express great surprise that the government has sought legal advice and has probably been told by the minister in the other place to get stuffed and that there will be no tampering with his bill. I will continue my remarks in support of these amendments in the hope that perhaps Senator Scullion, who has been listening in on the entire debate since it began, will exercise his balance of power role in the chamber and advise his colleagues to vote for these important amendments.

In undertaking the kinds of consultations and the processes of gaining consent, not just for a project like this but for any project, a land council is under a procedural fairness duty at law to give Aboriginal people whose rights, interests or legitimate expectations are affected an opportunity to be heard. That is part (a). Part (b) is to be free from bias. These requirements are normally enforceable under the Aboriginal Land Rights (Northern Territory) Act to stop the land council doing something in breach of those requirements, except where the action has already resulted in Aboriginal land being transferred to another party without that party procuring it with fraud.

Procedural fairness is not some kind of nicety. It is not something that you add as an afterthought and it is certainly not something that you would pull out of a piece of legislation such as this. It is vital to ensuring that the right decision or outcome is actually reached. In this case, that means that the right Aboriginal people under the meaning of the Aboriginal Land Rights (Northern Territory) Act consented to the nomination. The act provides that basic protection and, up to a point, it has worked in the Territory. It has certainly worked more effectively than the native title framework has worked.

In this instance, the Northern Land Council was under a statutory obligation to assist the applicants in pursuing their claim to be recognised as the traditional Aboriginal owners of the land in question. In particular, it was obliged to arrange for legal assistance for them at the expense of the Northern Land Council. The capacity of the applicants to look after themselves was seriously eroded by their lack of legal and anthropological assistance. These issues were matters of the gravest concern to the parties involved. They involved questions going to the spiritual responsibility of competing claimants and they are questions which arose in the framework of a unique piece of legislation. The issues of fact and of law were extremely complex. The duty of procedural fairness is critical to ensuring that consent is actually given to an acquisition of land. Normally this is a legally enforceable obligation until the point at which land is transferred without fraud. By virtue, however, of the 2005 act and the 2010 bill this was unenforceable at all times prior to land being transferred to the Commonwealth, particularly after a nomination was made.

I recognise, and presumably the minister will remind us, that under the Aboriginal land rights act the term 'traditional owner' gets thrown around pretty loosely in some instances by people who are not familiar with the term. It is a term in common currency that has a very specific and formal legal definition under the land rights act. The problem that we have in this instance is akin to something I remarked on earlier in the debate, that the mining industry, governments or a particular department wanting to host a toxic waste facility will turn up, draw a rectangle on the ground and then go looking for the right person to speak to for that rectangle on a map under the terms of the land rights act.

What has happened in the instance of Muckaty is that people have stood up and said that they are the right people. As a whitefella from a long way away, I am not qualified to adjudicate in their cause. They said that they were the right people to make that nomination, and the Northern Land Council has in turn said that the nomination was received in good order and it was transferred to the minister's desk—the previous minister who handed it on to Minister Ferguson. This has sidelined a huge number of people who consider themselves as legitimate traditional owners under the formal meaning of the land rights act, in that they have obligations or responsibility for country that will be directly impacted by the imposition of this facility.

That does not necessarily mean that they were born within the rectangle that we put on the map. It does not necessarily mean that they have spent their whole lives giving evidence to anthropologists to put those views on the whitefella's legal record. But it does mean that they have a genuine grievance in that, as we have discovered in the course of this debate, they do not believe that the land was correctly forwarded to the Northern Land Council and then on to the minister. In fact, they dispute intensely that the person who has put the nomination forward is the person with the sole responsibility and sole ability to put forward land that they will not get back because of the use for which it was forwarded. Nobody is ever going to be able to occupy that country in the same way again, because it is going to be surrounded with barbed wire—as you would hope for a facility of this kind—and the access corridor is going to have some kind of similar restriction. There will be severe restrictions to movements of people on and off that country. They will never get it back.

I think there are clauses in the bill that provide for the return of the land after a couple of hundred years. It is comic in a dark kind of way that their descendants in a couple of dozen generations will be able to return. Presumably the shed-like structure will be removed if it has not been converted into an international high-level waste dump in line with some of the more unhinged contributions made in the House of Representatives. They will get the land back, the shed will be taken away, but the ticking in the low-level material which is currently hosted and guarded at Lucas Heights will have faded to approximately background. That material will no longer kill you or give you cancer. It will have faded away through 10 half-lives of the longest-lived isotope to material that can be safely handled.

However, that is not the material in question. Even though the government and the opposition talk about it a lot—the gloves, the lab components, the bits and pieces, the spent sources and engineering stuff—that is not the concern. The concern is what would have happened to the several hundred or thousand cubic metres of long-lived intermediate-level waste that is being left there in the interim and for which there is no final disposal option? I think that is the real question here: will they get their land back in 300 years or will they not? The duty of procedural fairness which this amendment goes to is critical in ensuring that consent is given to an acquisition of land. Normally this is a legally enforceable obligation until the point at which land is transferred without fraud.

The 2010 bill and the 2005 act are not designed to give information to traditional owners about what the land would be used for as they do not generate any information about the project. The regime is not a land-use approval regime and it is not tied to one. It does not require details of a proposed land use to be proposed for consideration, and approval of that land use does not need to be constrained to the scope of the proposal. Rather it is simply what we are debating today, a regime for excluding state and territory laws and for quite aggressively, in my view, acquiring property rights. Land owners therefore have no concrete details of what is proposed, no ability to constrain their approval to details which are given and on which they base their decision and no critical information about the proposal. For example, this is different to mining proposals under the Aboriginal land rights act, where the miner is under obligation to provide a high standard of information and go into specific details of the site proposal and environmental impact. In addition, the proponents are tied to the statement, as if they do not accord with it the mining title may be cancelled. Those sorts of provisions do not exist in this bill. They exist if you are taking out a mining tenement to fossick for gold or whatnot; they do not exist in the case of a national radioactive waste dump.

I would like to make a few brief comments about compliance with a declaration of Indigenous rights before I put a question to the minister. As is evident, none of the provisions of the 2010 bill for the Aboriginal land rights act accord with a declaration of Indigenous rights adopted by the Australian government, particularly articles 10, 29 and 32. Article 10 states that:

Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.

Article 29 states that:

States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands or territories of indigenous peoples without their free, prior and informed consent.

Article 32 states that:

1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.

2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.

My contention is that the legislation that is before us this afternoon runs directly counter to those articles, those obligations to which Australia is a signatory. I am proud that we are a signatory, but in this instance we are trying to impose a facility on a community where free, prior and informed consent was not sought and was not granted, and that is why this has turned into such a fierce campaign.

As evidenced by the Muckaty nomination by the Aboriginal people, they are being forcibly removed from the nominated site without their prior informed consent and there have been no effective mechanisms for just and fair redress due to the exclusion of judicial and merits reviews. The Commonwealth has used inducements of cash—not very much but inducements nonetheless—for essential services to undermine the freedom of decisions by Aboriginal people. Minister, my question to you is whether any advice was sought by any office of the Commonwealth, particularly the minister's, as to whether this proposal violated those articles of the Declaration on the Rights of Indigenous Peoples that I have just read into the record.

Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to this | Hansard source

I understand that as part of the consultation on the bill FaHCSIA was consulted about the UN Declaration on the Rights of Indigenous People and they provided some advice about the application to Australia and to our handling of the bill. As you know, Australia has not ratified the declaration but supported it. We think we operate consistent with those principles. But the department did consult with FaHCSIA about the applicability and consistency with the declaration.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I thank the minister for that answer. Will the minister table the advice that was provided?

Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to this | Hansard source

What I have in front of me is not really advice. It is a set of dot points which I think would be known to the senator. They go to the questions of what the UN declaration does and government support. It is not a piece of legal advice, as it were; it is really just noting the various things that impact. But I will get that checked. I do not think it is actually advice in the way we think about it; it just provided information to the department about the applicability of the declaration. I will check. I do not think there is anything that will be a problem, but I do not want to misrepresent it. It is not a legal piece of advice; it is information to inform the process. I will take that on notice. If people are happy to table it, I will table it.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I understand that the government is now proposing a new act in relation to this issue after adopting the declaration. I think it is under an obligation to ensure that the process we are debating this afternoon accords with the declaration. I have just read into the Hansard record three specific articles to which, in my view, this bill runs directly counter. It simply violates them. It does not offer that process of free, prior and informed consent because, of course, if it did, you would not have people from neighbouring areas from that region—people who claim very strong connection to that country—fighting you in courts, fighting you outside the minister's office, turning up here in parliament seeking meetings, banging on the door, not having their phone calls returned and not having their correspondence replied to. The fact is that you have not offered the affected community any free, prior and informed consent.

Late last year, at the end of a budget estimates hearing, Mr Hill from the Northern Land Council advised us that he also had not visited Tennant Creek and met with the affected parties. You confirmed for us yesterday and again this afternoon that the minister and the Australian government have not either. The people trying to force this project into that region have not had the courage to go look the affected parties—the ones on the front line—in the eye. That is in direct violation of the spirit, the intent and the letter of that instrument. I think most Australians would be proud to know that we have indeed signed that declaration.

I understand that you are taking advice on whether or not the document that you read from before is something that could be put into the Hansard record. I also ask you to take on notice whether you have any advice at all, legal or otherwise, on whether the specific articles of the declaration that I read into the record are in direct and total contradiction to the terms of this legislation.

Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to this | Hansard source

I can be clear with the senator about that. Our advice is that the legislation does not contradict the principles contained in the UN Declaration on the Rights of Indigenous Peoples. We do not think there is any contest between those principles and the act. I remind the senator that the sorts of the things he has been talking about are required of the land councils as part of their statutory obligations to consult with and speak to people prior to gaining consent. It is similar to the discussion we have had before. So we think it is consistent with the principles in the UN declaration but also that there are requirements on the land councils to ensure the consultation and gaining of consent as part of their statutory function.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

It is interesting that again the government has sought to simply wash its hands of the dodgy and rather dark process that underlies the original nomination that you strongly condemned when you were in opposition, sheeting it home to the Northern Land Council and saying: 'That's their dirty laundry. Their process is their business. They have their obligations, and we simply accept what pops through the post box.' It is absolutely unacceptable. In 2006, in evidence to the Senate Standing Committee on Employment, Workplace Relations and Education, Mr Ron Levy, who is the NLC principal legal officer and who gave evidence to our committee late last year in the budget estimates hearing that I referred to before, put this into the record:

It is unlawful for a land council to nominate land as a waste facility unless it first has the consent of traditional owners.

So far so good. He said:

Your question, as I understood it originally, was: can a land council lawfully nominate land without the consent of the traditional owners? The answer is no.

So far so good. He went on:

The question as you now put it is: if the land council was to do that unlawfully, would it be validated? The answer to that question—in common with how the land rights act has operated for over 30 years and in common with, for example, how the Torrens title system operates regarding the real property—is yes.

It gets back to the issue before of the minister somewhat dismissively saying: 'That's just about spelling mistakes and stuff. That happens in legislation all the time. We will establish a set of criteria. Then there will be a clause in there that says that if any of these criteria are violated, it does not matter for the purpose of the nomination.'

That is why people are contesting this issue everywhere from the Federal Court to Minister Ferguson's doorstep in the electorate of Batman, where he is becoming more and more unpopular by the year. That is exactly the clause in the bill that they have zoomed in on and their legal counsel have zoomed in on and said, 'Just a moment.' First of all, they believe that the nomination was actually put up unlawfully. They have real problems with the terms of this legislation and with the way that the land rights act has been interpreted before, but I suspect the minister is going to tell me that there is long precedent for this kind of behaviour: that we can go through notional processes of consultation, tick all the boxes and then be told that, if any of the boxes were not ticked or if anything turns out to have been dodgy or if people were left out of the process or if cheques were written out to the wrong people, no matter how dodgy the process was, there is a clause in the act that says it does not matter, that the nomination can proceed. That is why people are so concerned about this.

We were told by the government and we were certainly given reason to believe by the Labor Party when they were in opposition that there would be a different approach. This is not a different approach. This is a continuation of the approach of terra nullius that says there is empty land out there. Julie Bishop, when she was federal science minister, referred to it as the middle of nowhere. She put it like this:

All the sites in the NT are well away from houses. There are three sites—

and now we can add a fourth—

that are currently being considered and they are former defence sites so they are some distance from any form of civilisation.

Tell Mitch that, tell Dianne Stokes that—that their block is some distance away from any form of civilisation and can therefore host this material, which will still kill you in a quarter of a million years, in a shed surrounded by barbed wire and two security guards. What kind of civilisation is it exactly that is promoting that kind of approach?

Senator Nigel Scullion, since he is still here and is taking part in the debate occasionally, said, 'Territorians don't like having this sort of stuff shoved down our throats because we are not a state.' Well, then, bring on statehood. If it takes being a state, if it helped the South Australians kick this project out of their backyard with the support of the Rann government, local government authorities, media organisations, the broader community and, most importantly, the kungas, the senior Aboriginal women who led that campaign—then bring on statehood. We have not yet heard Senator Scullion on that.

Earlier I quoted Alexander Downer, the former Minister for Foreign Affairs, proposing that what we should really have is high-level radioactive waste, spent fuel from commercial power plants all over the world, coming into Australia. Here is what he said:

I'd rather have that low-level waste out at—well it will be in the Northern Territory now. I would rather have it in the Northern Territory than in Mount Barker just down the road from my electorate office.

That, senators, sums up this entire debate. They want the technology as long as it is nowhere near them, as long as somebody else is picking up the tab. The people I have met with, because I have taken the time to go to Tennant Creek and to spend a bit of time in the Barkly region and in Darwin and Alice Springs, say that that approach is not appropriate. If it is unsafe in Sydney, it is not going to get any safer in a shed or a shed-like facility in the Barkly region.

These reminders of the way people from both sides of politics have handled this debate for decades tell us the reason we keep failing, the reason we keep running up against community opposition. People are saying: 'Wait a minute. You weren't straight with us. You weren't clear with us about the nature of this material, about how long it is lethal and about your reasons for getting it out of your backyard and into ours.' This game of toxic pass-the-parcel simply has to end.

I hoped I would be able to draw out from Senator Scullion his views on the amendments. Minister, you gave us advice earlier that there are at least some people behind the scenes who think the proposal is reasonably sensible. You have since been given legal advice that it is not going to be possible to do so or that you would rather not do it. I commend these amendments to the chamber. I hope that we hear some voice from the opposition—after all, Senator Scullion, it is a senator from Western Australia who is trying to prevent this stuff going into your backyard. I hope you will take the opportunity now to stand up and explain why you think that this is a good idea, that we do not at the very least embed the basic objectives of the land rights act into this Commonwealth bill.

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

Just briefly, Senator Ludlam, we will not be supporting these amendments. We think that the Aboriginal land rights act in itself is probably one of the most comprehensive processes run by the land councils to find those matters of free, prior and informed consent that you referred to. But this is not about the Northern Land Council; it specifically applies to land councils, and this is an insertion in there. You said that being a land council meant that it had to actually be in the Northern Territory or somewhere remote. But New South Wales has a heap of land councils, and whether you are in a piece of land in Melbourne or in South Australia and, presumably, it is not already occupied then it is extremely likely you are going to have to go through the processes within the state or territory to ascertain free, prior and informed consent. It is not only the Northern Territory land councils. But we agree with the advice that has been provided to the government with regard to the amendments, that being mentioned in two pieces of legislation is unhelpful, and we will not be supporting the amendments.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I was impressed by Senator Ludlam's amendment and the reasons for it. I listened carefully to what Senator Scullion had to say and, in view of that, I do not understand why he objects to this amendment. The amendment from Senator Ludlam requires that a nomination made under section 5 of the act—if it becomes an act or taken to have been made—is of no effect unless the land council, in nominating the land as a potential site for a nuclear waste dump, has complied with the Aboriginal Land Rights (Northern Territory) Act 1976. I would have thought that Senator Scullion would want to make sure that Territory law was being heeded, albeit the nomination of the land as a potential site was made by the land council subject to its powers and obligations under the Aboriginal Land Rights (Northern Territory) Act 1976. It simply ensures that compliance with Territory law is made. The question to the minister is: is that the case? I ask that specifically of the minister. I did listen carefully to his answer previously, but is the committee to understand that his advice—legal advice, of course—is that the nomination of the land as a potential site, which was made by the land council subject to its powers and obligations, is fully in accordance with the Aboriginal Land Rights (Northern Territory) Act 1976 or will be? That is the question, not generally whether rights are being upheld but whether the act is being complied with. If there is legal advice, would the minister care to share it with the committee?

Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to this | Hansard source

As I explained earlier, we think the amendment moved by Senator Ludlam is unnecessary because the effect is the same, but we have had advice that we ought not seek to reflect it in the bill as it is now. It is obvious that people have to comply with the Aboriginal Land Rights (Northern Territory) Act because it is the law; it already exists. While I understand what Senator Ludlam is seeking to do, we say that that is already required and that, although we cannot support it going into the act, we do not have a policy difference here in the sense that the act has to be complied with. I did not quite understand all of the construction of your question but the rules of nomination expressly state that a land council must comply with the Aboriginal Land Rights (Northern Territory) Act. So we think the amendment is unnecessary, but we actually think we are at one in a policy sense and that the bill as drafted will ensure compliance with that act.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

So the minister is saying that he agrees with the amendment, like the opposition spokesperson who also agrees with the amendment, but is not going to support it on the basis that the Territory law would have to be abided by anyway and effectively this is redundant. But it is right at the core of the matter that Senator Ludlam has brought up. The question back to the minister is: if this has no effect, and the minister's advice is that the Territory law would have to be upheld anyway then why not accept the amendment, writing it into federal law—that state law on this particular matter be a process to ensure that landowners' wishes are properly taken into account? Why not put it under the authority of this federal law as this could so grievously, potentially, affect landowners who feel they have not been consulted? If you agree with Senator Ludlam on this matter, what is it that prevents you from acting on that agreement?

Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to this | Hansard source

I think there is a misunderstanding. The Aboriginal Land Rights (Northern Territory) Act is a Commonwealth law. It is an act of this parliament, and those provisions are decisions of this parliament. It is not a question of Territory law versus Commonwealth law. What I am saying to you is that this is the law. It is the current law of the land as enacted by this parliament. Our advice is that to try to include the same provisions in a separate bill is not advisable as it can create a set of legal complications. As I say, in a policy sense, we are in agreement, but our advice is to not accept the amendment because we think it would do damage to the intent. But the provisions you are seeking to uphold are provisions of Commonwealth law already passed by existing law agreed to by this parliament. We have an act that does that already, and we are seeking to amend another act to restate that. Our advice is that we should not do that. The policy intent is reflected in the Aboriginal Land Rights (Northern Territory) Act, which is an act of this parliament.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I am aware of that, but the Aboriginal Land Rights (Northern Territory) Act 1976 specifically applies to the Territory. It is not an acceptable argument from the minister that therefore it is redundant to put in the application of that act to ensure that the act is referred to into this piece of legislation. Whether the adviser agrees with that or not, it is common in law to make sure that anybody reading the law does so in companionship with another law. That is what Senator Ludlam is proposing to be done here. What I have not heard from the minister is why it should not be there. He says there are complications. Well, what are they?

Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to this | Hansard source

Senator, in good faith I undertook to Senator Ludlam to get further advice because my inclination was to accept the amendment, given that we were at one on the policy intent. Having sought that advice in the break between us dealing with this bill, the legal advice is that we ought not to do it—that it would create difficulties in terms of legal interpretation and potentially lead to litigation. That is the advice I got. On the basis of that advice, the government has made the decision not to support the amendments.

There is no policy argument here. Our view is that the intent that Senator Ludlam's amendments represent is already the law of the land. We will not be agreeing to the amendments, but I cannot add anything further to that. That is the advice we have got. If there were a policy difference I would attempt to resolve that, but there is not. I cannot say it any other way. We have been around the traps on this for a while. We are not going to accept the amendments, but I do not think Senator Ludlam's endeavours or policy purpose is at all damaged by that decision. I do not think the defeat of his amendments will do any damage to the intent he had in moving the amendments.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Just to follow up on that, could the minister give the Committee, in the absence of the advice that he has being given to the committee, an example of where citing the land rights act of 1976 in this way in this legislation could lead to litigation?

Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to this | Hansard source

As it is hypothetical, the answer is no—I cannot give you an example of what might occur in a practical sense. All I can do is tell you the advice I received. We are not going to support the amendments. We can continue to debate them, but we are not going to support them. I have endeavoured to get that advice, to accommodate Senator Ludlam if I could. The advice is that I should not. So I will not. And I cannot take it any further than that.

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

Perhaps, Senator Brown, I can assist. First of all, I am not sure if you were in the Senate but I have commended, as I think the government has, Senator Ludlam on the motive for this—to ensure that we are making sure that the consent process, which is laid down under section 77A of the Aboriginal Land Rights (Northern Territory) Act 1976, is adhered to. Could I just point you to this legislation before us under Division 1—Nomination by a Land Council, section (f)(iii) where it says:

… the traditional Aboriginal owners as a group have consented to the proposed nomination being made (that consent as a group being determined in accordance with section 77A of the Aboriginal Land Rights (Northern Territory) Act 1976) …

and goes on, in (iv), to say:

… any Aboriginal community or group that may be affected by the proposed nomination has been consulted and has had adequate opportunity to express its view to the Land Council.

I would submit that this is, in this piece of legislation, almost identical—certainly in intent to ensure that it is absolutely clear that any nomination, in terms of the free, prior and informed consent, is actually already dealt with in the legislation that we are looking at today.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I thank Senator Scullion for that. He has given a very clear example of where federal legislation leads to a citing of territory legislation to ensure there is consistency. But here we have the minister saying, 'Don't have federal legislation citing other federal legislation to deal with consistency'—and I am not going to labour this any further, but the minister has said that it could lead to litigation. When you say you are going to oppose an amendment on the basis that litigation might arise from that amendment, then you ought to be able to say how or where or why. But the minister is failing to do that and that is the whole problem with the defence he has given for opposing this piece of legislation. There is no defence. There is no manifest litigation that will arise from it. It is a commonsense amendment that Senator Ludlam has put in here. It makes the reading of the act, and the process of somebody who is wanting to determine what this act is about, much more consistent and logical. All we are getting from the government and the opposition is that they agree with the amendment but will oppose it, and I cannot see much logic in that.

Mary Fisher (SA, Liberal Party) Share this | Link to this | Hansard source

Then, in that case, the question is that the amendments moved by Senator Ludlam be agreed to. Those in favour—

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

Chair—

The TEMPORARY CHAIRMAN: Senator Ludlam, before I put the question?

Thanks, Chair, I appreciate that. I will just make some closing remarks on these amendments. I thank Senator Brown for his contribution and also Senator Scullion, and Senator Evans for at least indicating that the spirit of the amendment is supported if not the letter. The reason that this amendment is before us is that what we have here is a proposal being experienced not hypothetically, not in the abstract—a proposal which stands in absolute, clear, stark violation of the principle of free, prior and informed consent, on the table and embedded in this bill. The people fighting this proposal in the Federal Court and out the front of the minister's office did not offer their consent. They were not given advanced warning. And they were not free to make that decision. That is the problem that we have here. And maybe it is redundant to say, 'The proposal that is before us should at least make an attempt to be compliant with the provisions of the Aboriginal land rights act. But maybe it will give some comfort to the next people who find themselves in the firing line after the Muckaty proposal falls over, because quite clearly this proposal does not—otherwise you would not be getting the heat that you are getting. This minister is finding himself in the same hot water as the previous minister because he is pursuing the same strategy of a ram-raid—a land rights ram-raid. There is no free, prior and informed consent here at all.

So I thank all participants in the debate on this amendment for at least acknowledging that it would be nice if the act were in concurrence with the Aboriginal land rights act. But the fact is that we have a stark violation of the principles and, in my view, the letter of that act before us now. That is why this particular proposal is so hard-fought. In South Australia, they do not have an Aboriginal land rights act. Nonetheless, we saw the same government strategy of just booting the door down and then trying to explain its actions afterwards as being somehow consultative. We have changed the language in this instance. Now it is based on the principle of volunteerism: 'After we kick the door down you will be discovered to have volunteered for radioactive waste.' It is not good enough. This proposal is going to fall over no matter what the outcome is in the Federal Court because the bigger picture here is that we should not continually be seeking coercively to dump this material in a shed—as former minister Julie Bishop put it—'a long way from civilisation'. It demeans us as a civilisation if, when we get to that place in the middle of nowhere, in that land of terra nullius we find people who are telling us that they do not want the stuff on their block. They do not understand how it is that if it is unsafe in Sydney, somehow transporting it thousands of kilometres and taking it to Tennant Creek will magically make it safe. I commend these amendments to the Senate.

Mary Fisher (SA, Liberal Party) Share this | Link to this | Hansard source

The question is that Senator Ludlam's amendments (4), (5) and (12) on sheet 7037 be agreed to.

Progress reported.