Mr MELHAM(11.40 a.m.) —I think the honourable member for Moore (Mr Filing) would be better off putting his police uniform back on; his legal uniform is sadly not appropriate for him because it was a bush lawyer's opinion that he offered us. I think his opinion is held in good faith and that he is genuine in relation to that. But I must say that he is better off sticking to police aspects rather than legal aspects.

This is what I had to say during the racial tolerance debate, a motion that was unanimously carried by this parliament. I said:

The Racial Discrimination Act of 1975 is special to all of us. It is pleasing that all sides of this House have in their policy respect for the principles of this act. This act is our bill of rights. This act makes us all equal. As parliamentarians, we should at all times strive to maintain the principles behind this motion and every subsequent piece of legislation in this parliament should respect the Racial Discrimination Act.

And why shouldn't it? Otherwise, the resolution that we passed last week can be discounted quite properly as weasel words—as, `Yes, we can say this but we do not really mean it.'

If the government accepts our amendment, it will be a clear demonstration. We have been given assurances; we do not accept the assurances. The government says one thing and its actions reveal another. The very fact is that the minister let the cat out of the bag. He was given advice from the actual minister. He said:

. . . I am indebted to the minister who has given me advice on this matter.

Further:

If the amendment were totally benign, perhaps we could look at it differently.

The amendment is a serious amendment; it says that the parliament should respect the Racial Discrimination Act—and if they are not prepared to support that, what does it say? It lets the cat out of the bag because it says that they are not all that confident that their legislation is not discriminatory. What they are confident of is that the later legislation will prevail. That is what they are saying. They say that it is consistent with the Racial Discrimination Act; we say that it is not. If this legislation was consistent with the Racial Discrimination Act, you would accept the amendment. The minister continued:

The second thing that we are advised is that this is a precedent that has not been set and would provide a precedent for other legislation.

What is wrong with this precedent in the current climate? Why shouldn't this parliament assert, reassert and continue to reassert what is in every major political party's policy: respect for the Racial Discrimination Act? We on this side want more than words because of where this government is heading in this whole race debate. If they vote against this amendment, they will be seen for just uttering the words but not being fair dinkum. People will not believe you. The minister further stated:

Thirdly, if we agreed to the amendment, and in the unlikely event that our advice was incorrect—

and it has not been good up to now—

and the bill was in fact in breach of the RDA, then the bill would be ineffective to close off a section 10 process . . .

Well then, it should be. If it is in breach of the RDA, if it is discriminatory, then it should be struck down. The point is: it is all so unnecessary because there is no protection order in existence. There is an excellent article written by Alan Ramsey in the Sydney Morning Herald on Wednesday, 6 November 1996 in relation to Boobera Lagoon in New South Wales where the minister has been sitting on a positive report since 22 April. Mr Ramsey says:

In the Parliament last night, the House of Representatives was scheduled to begin debating a piece of "special" legislation to resolve the Hindmarsh Island bridge controversy. The Government insists the bill is necessary to ensure the legality of the bridge being built. What the legislation really does, though, is bring Hindmarsh Island back into sharp public focus in South Australia.

Further on he states:

. . . what Herron insists needs special legislation in South Australia does not, it seems, in a parallel case in NSW, need legislation of any kind to achieve the same end.

That end is to say "no" to Aboriginal claims under the Aboriginal and Torres Strait Islander Heritage Protection Act, whatever their merits or otherwise.

Indeed, the minister was taken to court and they were successful in New South Wales. Foster J. on 17 October 1996 in Sydney declined to give interlocutory relief because it was held that the minister had an absolute discretion and that the relief that the Aboriginal people were seeking was not available. (Extension of time granted) The relief was not granted. This is with a positive report because there is no dispute. In that instance there is no protection order. The minister cannot be compelled to issue a protection order. So desecration is occurring at the Boobera Lagoon in New South Wales and indigenous people cannot do anything about it. All they can do is get the minister to consider the positive report that he has been given, and he will do that in due course after consulting.

The same principles apply. The legislation has been tested in the Federal Court. It has gone all the way to the High Court and now this minister has the benefit. That is why, when we say `Follow due process,' you can use the evidentiary material from the Mathews report. You do not need to breach the Racial Discrimination Act.

Let us say that your advice is wrong. In the current climate with this Prime Minister's track record dating back to 1988, isn't this stupid legislation? He gave a solemn commitment to the electorate and a solemn commitment to this parliament time and time again to respect the provisions of the Racial Discrimination Act, but what happens with the first test he has? He says, `Sorry. This is unnecessary. We are not voting for this amendment.'

The situation is that the government need to be very careful because they are going to lose all credibility in relation to this. I think it is fair to say, as Frank Brennan says:

In receiving advice . . . as to whether the Hindmarsh Island Bridge Bill "respects the provisions of the Racial Discrimination Act", it would be no defence for the government to be left dependent on . . . advice . . . that "The proposed legislation could not be subject to successful legal challenge on the basis that it is inconsistent with the Racial Discrimination Act. As a later enactment, the proposed legislation would not be subject to the Racial Discrimination Act."

It would be regrettable if the government were to legislate a later specific act inconsistent with the Racial Discrimination Act such that to the extent of the inconsistency the latest specific Act were to negate the effect of section 10(1) of the Racial Discrimination Act. The later Act could not be presented as one which "respects the provisions of the Racial Discrimination Act".

That is why the government is opposing this amendment. What we have done is put their weights up. That is material that the minister has been given, not by a legal person. But he has been written to and he knows that. That is why those words `this is consistent with the Racial Discrimination Act and this legislation is not retrospective' do not appear in the second reading speech. This bill is inconsistent with the Racial Discrimination Act, and they know it. They are just not being fair dinkum.

In relation to the Racial Discrimination Act, there is hypocrisy in the government at the moment. In relation to the race debate, we seem to be saying that what has happened to Asian Australians is a disgrace and saying it is mea culpa. But that is capitalism suffering. We are not getting the same mea culpa in relation to Aboriginal people. They are still being blamed. In the last couple of days we have had newspapers running around attacking salaries for the SES officers in ATSIC—salaries that are subject to Public Service regulations, salaries that are consistent with what is happening throughout the Public Service. But it is only the ATSIC people who are being attacked.

That is what this legislation does. It singles people out. It blames them. What we say is: the government won. The minister is there. He has the absolute discretion. There is no protection order in existence. Follow due process. You have our support. There is no need for this debate. There is no need to take sides. If you want to take sides with the developers, good luck to you. You are entitled to do that, but do not do it by attacking indigenous people. Do not do it by bringing in an act that is inconsistent with the Racial Discrimination Act.

Do not come in here and use weasel words in everything but the second reading speech—in press releases and when briefing the gallery and then, when you are asked to put up or shut up, you slink away and oppose an amendment that is fundamental, that says that the Racial Discrimination Act is paramount. It is in your policy and it is in the utterances of your Prime Minister. But when you are tested you walk away. You walk away because you are not confident in your legal advice. (Extension of time granted) We are confident in our legal advice. We are confident that, as a result of the tabling of the Mathews report, there is sufficient material.

The minister can have this bridge wrapped up very quickly without this special legislation. If they are worried about further judicial review, they should follow due process. We say that he does not need to do anything further because there is sufficient material to invoke the Tickner v. Bropho exception. That would show that further pursuit of this application would be frivolous or vexatious. But the more conservative view is—the view that Father Frank Brennan puts and the view that others put—that you can go through, by receiving the material that the minister tabled in the Senate, another quick inquiry.

The Wilson case in the High Court says that it does not have to be public. You can do it within 28 days. That is an option. That does not breach the Racial Discrimination Act. That is safer. What we say on this side is that if you want to persist with this discriminatory legislation, then do it by supporting our amendment, which sends a clear message. It says, and the government can rely on this, `If we did breach the RDA we didn't mean to do so.'

If the Prime Minister's words are to mean anything, if he says he respects the provisions of the Racial Discrimination Act, then how can he vote against the amendment we are putting up? They vote against it because they are not sure. Because it involves indigenous people, they want to take the short cut. We on this side will not take any short cuts in relation to the Racial Discrimination Act. We regard it as paramount. Time and time again, we will reaffirm our commitment to the Racial Discrimination Act. That is how you send the message to Asia and to the racists in the community that we are all equal, irrespective of our race and irrespective of our religion.

What has happened since the Prime Minister has been reinvented, since he resumed the leadership in opposition and since he came into the prime ministership after 2 March, is that there has been a new McCarthyism in this country, based on the colour of someone's skin. The first targets were indigenous people and the second targets were Asian Australians, and it is a disgrace.

It is no good passing resolutions about racial tolerance if, on the first test of the primacy of the Racial Discrimination Act, this government votes against this amendment. What it leaves you open to is the allegation, and the only inference, that you are not fair dinkum, that you do not believe in it, that you are just uttering the words.

Your body language and your action says it all. Your action in voting against this amendment says where you stand. Your action in voting against this amendment says that you are not confident in your advice that this bill respects the Racial Discrimination Act. And this bill does not. It does not because it is aimed at a class of person: indigenous people who enjoy the benefits of the Heritage Protection Act. It is only indigenous Aboriginal and Torres Strait Islander people who can invoke the provisions of the Heritage Protection Act. Legislation aimed at taking away an existing right, aimed at taking away a right that these people currently enjoy, is aimed at a class of person. It is aimed only at these indigenous people. That is what this legislation does. That is why it has got problems with the Racial Discrimination Act and that is why the government will not accept our amendment.

The thing is that it is all so unnecessary. There is no protection order in existence. The bridge can be built tomorrow, and the minister cannot be compelled. He cannot be compelled to build the bridge. He cannot be compelled to issue a protection order. If he was silly enough to issue a protection order, the government has the numbers in terms of a disallowance motion. So this is a charade. It is a charade that will further divide the community in South Australia. It is a charade that should be put to an end. The government should back off on this legislation. They should accept our amendment. (Time expired)

Question put:

That the proposed new clause be inserted.