Mr MELHAM(12.08 p.m.) —I have proposed to add to clause 3, page 2, after the definition of `pit area', the following definition: Racial Discrimination Act means Racial Discrimination Act 1975. Let us be clear. What the government just did was vote against a clause that respects the primacy of the Racial Discrimination Act 1975. What a disgraceful performance from a government which says that it respects the provisions of the Racial Discrimination Act.

That says it all. You cannot rely on the word of the government. You need to take note of what they do in action, not what they say. They have just voted against it. The Racial Discrimination Act, as we have said on this side, is paramount. I have received certain advice, and it is worth while quoting aspects of that advice. One says:

I am asked to advise whether it is necessary for the Government, in order to resolve the existing application for a declaration under Section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act, 1984 of land the subject of a report by Justice Mathews of 27.6.96 (now tabled in the Senate) and to avoid having to consider future applications, to pass legislation having the effect of exempting the land that would be affected otherwise by such claims from the operation of the Act. I am also asked to advise generally as to the effect of such legislation, if passed, on the Racial Discrimination Act.

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There has been a deal of litigation and Parliamentary debate.

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Neither the High Court nor anyone else has impugned the integrity or accuracy of the information in the report. Although it has been suggested that, by reason of the High Court decision, the Report is not a Report for the purposes of the Act it has not been nor rationally could it be suggested that the materials in the Report, the earlier Report, and available from the Royal Commission are not exhaustive and available to the Minister. A further report would yield no more nor does it seem that it could reasonably reach any other conclusion.

That is something the minister said in his second reading speech. It continues:

The terms "frivolous and vexatious" do not occur in the Act nor is there any specific reference to the abuse of process doctrine but these concepts or analogies appropriate to administrative law are well known in the general law. Neither in courts of law nor administratively does the law require that a decision maker armed with all the material embark on an arid exercise fore-doomed to failure. An application which unarguably could only fail would be frivolous and vexatious and to persist with such an application when "the material pointed unmistakably in this direction" would be to abuse the processes required by the act for the purposes of Section 10. These concepts are aimed at (inter alia) avoiding such a waste.

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In the circumstances, it is my view that the present application is, in light of all the material already available, such an application and thus the machinery of the Act is no longer invoked. There is no practical potential in a new Report or inquiry.

The supplementary advice, given after the act was produced, says:

I have already advised that to persist with the present application where it is clear that there is, presently, no evidence which would warrant a declaration i.e. capable of satisfying the Minister a declaration should be made, and where after exhaustive inquiries there is presently, unmistakably, no real prospect any such evidence would be produced, is to invoke the machinery of the Act to no purpose and is frivolous and vexatious such that the Minister need take no further steps in relation to it.

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There is therefore no need for legislation. Indeed, it is most peculiar for a Minister to be relieved of a statutory discretion, in a particular case by legislation solely directed to that case, where on the facts no need for the exercise of the Ministerial discretion arises. The only circumstance in which it might be appropriate is where the Minister considers that absent the legislation it might be necessary for a declaration to be made i.e. that there would be substance in an application.

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. . . to remove the efficacy of an already made application to defeat the statutory consequence is retrospective in that sense.

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This is to discriminate in this particular case and to do so on the basis of Aboriginality.

That is what one senior counsel in New South Wales has had to say about this legislation. Another senior counsel who was consulted by me and the opposition on the questions that arise said:

What is the effect of this proposed legislation? Is it necessary?

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The Act has retrospective effect since it prevents a claim presently on foot from being completed.

It also has prospective effect, since it prevents any claim ever being made in relation to these areas, no matter what the basis of the claims might be.

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. . . the present application can be determined according to law quickly and fairly.

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In my opinion, this proposed legislation offends against the spirit of the provisions . . . of the Racial Discrimination Act, 1975. Were it State legislation, I would have no doubt that it would be invalid . . .

(Extension of time granted) That QC's opinion goes further:

The contravention comes from the exclusion or restriction from exercising a legal right which comes from a retrospective legislative depravation of an entitlement to make an application, applied only to one group of persons, namely the aboriginal applicants seeking a declaration in relation to the areas intended to be built on by the Hindmarsh Island Bridge.

In conclusion:

1.   There is no need for the proposed legislation, which is bad in principle because it retrospectively removes the rights of a small section of the indigenous population, for no apparent important public purpose.

2.   The proposed legislation infringes the spirit of the Racial Discrimination Act, 1975 . . .

That is a second QC's opinion. The key to this is that, if it were state legislation, it would fail for breaching the Racial Discrimination Act. This government relies on the fact that this will be a later act so it will override the Racial Discrimination Act. That is why there is nothing in the second reading speech of the minister giving the undertaking that it does not breach the spirit of the Racial Discrimination Act.

It is also unnecessary. We do not need to bring into question the legal opinions on whether this does or does not infringe the Racial Discrimination Act. It can all be done without legislation—and in a quicker way. It is not now a priority of the government. It is not going to get on the Senate paper until next year. The government has been too smart by half. There is no protection order currently in existence.

If the Minister for Aboriginal and Torres Strait Islander Affairs (Senator Herron) follows due process—something they attacked the previous minister for—the bridge would be guaranteed. The minister at the table, the Minister for Health and Family Services (Dr Wooldridge), really needs to answer a couple of questions in relation to the Racial Discrimination Act. What do you mean by `benign'? Does our amendment do more than just preserve the RDA? That is the point. That is where the game is up.

I suggest that, once this goes through the House of Representatives, the government should come and have a talk to us in a proper, constructive fashion. It can be done without the need for sending this signal, without the need for having on our statute books a piece of legislation that breaches the spirit of the Racial Discrimination Act, a piece of legislation that is discriminatory, that is not necessary and that sends the wrong signal to the community and to the world.

This bill says, `If you are in this country and the colour of your skin is black, then you don't count.' That is what happened when the government voted against respecting the provisions of the Racial Discrimination Act 1975. That is what this debate is all about. The Racial Discrimination Act makes us all equal. No government at a federal level, at a local level, at a state level or at a territory level should ever override or suspend the Racial Discrimination Act. That act makes us all equal. It is the most important act on our statute books.

Every piece of legislation that this government brings into this parliament that affects indigenous people, in my opinion, should have the qualifier that we respect the provisions of the Racial Discrimination Act. That is the overriding principle that should be guiding us all. That is where this legislation is flawed.

This is all so unnecessary. This debate did not need to take place in this chamber. It is a debate that shows this government has no confidence in the Minister for Aboriginal and Torres Strait Islander Affairs in his administration of the act. We should be debating the Heritage Protection Act in light of Justice Elizabeth Evatt's fine report that was tabled in the Senate and in this place. It is a fine review. It shows that the act itself is deficient in protecting Aboriginal heritage and Aboriginal culture.

It is a shameful day when a political party has its Prime Minister saying, `We will respect the provisions of the Racial Discrimination Act,' and then comes in and votes against a clause. The minister gave it away, as did the Minister for Defence (Mr McLachlan) when he talked in his contribution about the later act prevailing.

They know exactly what this clause means. They know exactly the dangers of this legislation. My view is that you cannot say enough. It is a precedent we should be setting. It is a precedent that says that if this act inadvertently breaches the RDA then the RDA should prevail. Today is a sad day for this parliament. The resolution we passed last week has been shown up for what it is—weasel words. (Time expired)

Madam DEPUTY SPEAKER (Mrs Sullivan) —The member for Banks circulated an amendment, which he said he was now not going to move.

Mr Melham —I do not see the point in proceeding with it now in light of the earlier vote. I am happy to withdraw that amendment.