Mr MELHAM(8.41 p.m.) —The Native Title Amendment (Tribunal Appointments) Bill 1997, which is now before the House, contains amendments to the Native Title Act 1993 that amend the qualifications for appointment of presidential members of the National Native Title Tribunal and provide for the temporary appointment of the registrar to the National Native Title Tribunal by the president. The explanatory memorandum says that currently only judges may be appointed as presidential members and only the Governor-General can appoint an acting registrar.

The explanatory memorandum and the second reading speech also say that these amendments ensure that a more diverse field of suitably qualified candidates may be considered for presidential membership. They also ensure that the National Native Title Tribunal can act quickly and efficiently deal with a temporary vacancy in the position of registrar. That is contained in the explanatory memorandum. Again, the assertion that currently only judges may be appointed as presidential members is in the second reading speech.

The true situation when one goes to section 110 of the Native Title Act is that the president or deputy president can actually be a judge of the Federal Court or a former judge. A former judge is defined in section 253 of the definitions section as `a person who has been a justice of the High Court or judge of another federal court or of the supreme court of a state or territory'. It is not current judges but former judges who can hold that position. The explanatory memorandum and second reading speech are technically not correct.

The amendment bill seeks to expand the qualification at the end of section 110 dealing with persons who may be appointed as presidential members by adding section (3) which states:

A person who is, and has been for at least 5 years, enrolled as a legal practitioner of the High Court, of another federal court or of the Supreme Court of a State or Territory.

The opposition will be opposing that extension of the appointment of presidential members.

I think it is important to outline the reason for that. It will come as a bit of a surprise to some members of the government because it is a change in the earlier position put by the former government in a position paper. We say that up-front. There is no hiding from that. We believe that, as a result of consultation and recent events, it is important that that particular provision not be changed. We believe that the current provision, as it is, and the experience over the last 18 months—particularly since the change of government and since there has been discussion over amendments to the Native Title Act—have shown that to have someone of the stature of Justice French in that position has, from the opposition's point of view, added to the tribunal and add to the acceptance of the tribunal by all stakeholders.

The position in relation to section 110 was put in the Attorney-General's Department outline of proposed amendments document released in September 1995. It stated at page 15:

This section will be amended to broaden the qualification for appointment as presidential members to include persons who have been legally qualified for five years.

There was no further justification of that. But I think it is important to put the qualifier, the purpose of the outline at page 2 of that paper of September 1995, on the record. It says:

The following pages contain an outline of the proposed amendments in order to provide a basis for consultations on the proposals.

It was not a final position of the former government. Indeed, further down in paragraph 7 on page 2 it says `Although the bill has yet to be drafted'. So that position was put out in the public domain. The current president of the tribunal, Justice French, has a particular view, and his view was put openly in a discussion paper of 14 March 1995 on proposed changes to the Native Title Act. Justice French says:

Under the proposed amendments the present organisational arrangements of the Tribunal would remain unchanged. The Registrar would continue to be the Chief Executive Officer of the Tribunal under the President and would maintain the Registers of Native Title Claims and Native Title Determinations.

Then he goes on, and this is the relevant part:

Having regard to the desirability of distinguishing the role of the Tribunal from that of a court, it would be appropriate that no serving Judges be involved in its ongoing work. This would also have the advantage of limiting the diversion of resources from the Federal Court which will, on any view, have a significant role in the hearing and determination of native title cases or substantive issues arising out of them.

That was Justice French's view. Indeed, in submission No. 63 in August 1996 on section 110, Justice French says:

This section as it presently stands sets out the categories of membership of the Tribunal and the qualifications for appointment to those categories. The amendment extends the qualifications of Presidential Members to include persons who have been legal practitioners for five years or more.

The comment by Justice French is:

The amendment is supported. It will provide greater flexibility in the appointment of Members to the Tribunal.

But there was an opposing view put by the Aboriginal and Torres Strait Islander Social Justice Commissioner, Mick Dodson, in his report entitled The Native Title Report: July 1995-June 1996 . That is in chapter 8 on page 188. In relation to the proposed amendment, the Social Justice Commissioner says:

Currently, only judges of the Federal Court or former judges can be presidential members of the NNTT. The proposed amendment provides for lawyers with five years of experience to be eligible for appointment as presidential members.

This proposal may undermine the standing of the NNTT. In the establishment and consolidation phase of a body with the significant and unusual functions of the NNTT, it is vital that it be perceived as credible and impartial. This perception would be undermined if the President and Deputy President of the NNTT were not required to have judicial experience. I therefore believe that the proposed amendment is inappropriate.

That is a view that Mr Dodson put back then, and I believe that that view has been confirmed in recent months. I believe that having someone of the stature of Justice French as the presidential member has helped the debate. It has given stature to that position. It has also maintained a confidence in the tribunal that might otherwise be missing if it were not a Federal Court judge. I repeat that the second reading speech and the explanatory memorandum fail to point out that former judges can be appointed to this position. I think that in the current climate it is important that that position be maintained.

That is why in the consideration in detail stage of the debate I will be moving an amendment. The opposition will be supporting the other amendments in the amendment bill. We have had the benefit of further amendments that are proposed to be moved by the government being circulated to us and we will be supporting those amendments as well.

I understand that there will be some disappointment on the government side, but there is a lot of misinformation about at the moment in relation to the tribunal, among other things, and there are a number substantial proposals that are certainly being considered as to whether the national body will be maintained in its present form or, indeed, whether we will have exclusive state bodies exercising a similar role. I have a particular view—it is not the concluded view of the Labor Party at this stage—that we are better off with the present structure. I believe in the uniformity of our system. I believe that what you need is a national overarch. I believe that the 1967 referendum says that the responsibility of this parliament is to protect indigen ous people and to legislate in their interests. I think a national overarching body which will have uniformity is preferable.

I want to see, with some amendments to make it work better, the tribunal remain as it is. I am not in favour—and I repeat that I am expressing a personal view here—of having eight different bodies under the auspices of particular state or territory governments. But that is another issue that will be debated at another time.

There has been a very hysterical debate. We have had members of the coalition, one in particular in the other place, launching quite inappropriate attacks on the tribunal—quite personal attacks on the current president of the tribunal—and misrepresenting the situation. I think that particular member has got a problem because he is obviously looking for votes. I think Justice French has done an exemplary job, and that is to the credit of this government. We applaud what they did in extending his term of office so that he can be there while the amendments to the Native Title Act are being considered, and that gives continuity to the process.

On this side of the House, we now believe that this recent experience adds to the position that we are taking, and that is that the tribunal really should remain the same. I do not believe that the tribunal will have as much credibility from the stakeholders themselves or from the community if it is someone who merely has been for at least five years enrolled as a legal practitioner of the High Court, of another federal court or of the Supreme Court of a state or territory. I believe that the presidential member or the deputy president should be a judge of the Federal Court or a former judge.

What can happen is that the Attorney-General and the government can appoint someone from the Supreme Court. I know that Justice Mathews, for instance, was a District Court judge at one stage and then a judge of the New South Wales Supreme Court and then became a judge of the Federal Court. We think that adds to the stature of the tribunal and the acceptance of that tribunal. We do not believe it is a natural consequence of the Brandy High Court decision that you just have to take away or water down the current proposals.

I think there are a number of other arguments that can also be used to support why the status quo should be maintained. In short, having someone who has that stature I think does send a signal of impartiality, integrity, authority and status to the tribunal that is sadly needed at this point in time. One of the arguments we had in relation to another bill was that as a result of a High Court decision the government is now proposing amendments to do with telephone intercepts where those warrants that are fairly intrusive should be able to be issued by members of the Administrative Appeals Tribunal. We believe that sends the wrong message.

In the current climate it seems to me that longstanding principles are being changed. We do not believe this does take away from the resources of the Federal Court. We are not advocating that Justice French maintain his position in that office. The appointments are for five years. It is not just present judges; it is former judges. If there is a question about resources, you can get former justices of the High Court. I repeat the definition: a person who has been a justice of the High Court or a judge of another federal court or of the Supreme Court of a state or territory. So there is not that limitation.

This is about bringing and maintaining confidence in this system. I repeat—and I cannot repeat it enough—that it is the experience of the job Justice French has done in recent months that we believe confirms the view that the Aboriginal and Torres Strait Islander Social Justice Commissioner, Mick Dodson, has expressed in his reservations. That is why we put on the table the earlier positions of the outline paper and Justice French's position. We believe that they are legitimately held, but if this provision is expanded and the government goes the other way then I think that is going to create problems. We think it should remain the same.

It also means that the person, even though it is not necessarily a judicial function, is possessed of relevant legal decision making skills. We have sought the advice of others. The preference, again as a result of recent experience, is that the tribunal remain the same. There is a fear that this will be used in effect to run another agenda. There is no evidence of that—none whatsoever, I might say—but that is the view, that is the fear and that is the misconception. Sure, it might give flexibility, but we believe that the flexibility of having former judges there is enough for this government in the current climate.

In relation to the flexibility of appointing acting registrars, we think the government has made out their case. Further amendments that are being proposed in relation to the experience that the acting registrar should have—it is worth reading those out—list the same qualifications as those for other members of the Native Title Tribunal. They state:

(2)   A person is not to be appointed as Registrar unless:

   (a)   the person is enrolled as a legal practitioner of the High Court, of another federal court or of the Supreme Court of a State or Territory; and

   (b)   the person has substantial experience in relation to:

      (i)   Aboriginal or Torres Strait Islander societies; or

      (ii)   the law; or

      (iii)   administration; or

      (iv)   any other activities relevant to the duties of the Registrar.

We believe those amendments improve on the present situation. They improve on the availability of persons to be appointed as Registrar and they send the right message. But in the current climate—and, frankly, given the current government's signals that seem to be going out—we believe that further expanding the qualification of a presidential member or a deputy president from a judge of the Federal Court or a former judge is inappropriate.

We would be prepared to review this further down the track if the government deems that to be appropriate. But take heed from us on this. This is not something that we are trying to score party political points on. This debate is integrated with some substantial amendments that we will get the benefit of on Thursday.

This government talks about workability and certainty, but it is all doublespeak. What is the good of having legislation that is unconstitutional and that might be struck down by the High Court? That is not going to provide certainty or workability for the miners or the farmers. What is the good of allowing mixed messages to go out into the community?

There are criticisms of the member for Oxley, Pauline Hanson. I think she is entitled to her legitimate views. She should be attacked in relation to policy on moral grounds, but what we get is a special person set up in the Department of Foreign Affairs and Trade and we are told that it is bad for business in Asia. What sort of message does that send to our region? We should be attacking her and saying, `Not only is she bad for business; what she is saying is wrong.'

It is perception. That is the problem with this amendment. The perception is that you are watering down the status of this tribunal and you are watering down the status of the position at a time when all stakeholders require confidence in the system. The community requires confidence in the system. We believe that to water it down in the way that the government is now proposing at this time sends the wrong message. It leaves the tribunal open for further attack and further undermining. I believe the senator who attacked Justice French and the tribunal did themselves damage—not only because of the way Justice French handled himself but also because of his status. There was no doubt about his integrity. I think that came with his qualifications.

I know the Attorney-General, who is sitting at the table, came out in defence of Justice French. A presidential member who might be appointed by this government and who is not a judge of the Federal Court or a former judge is open to attack from either side, from the stakeholders and from indigenous people saying, `Why are we being treated as second-class citizens? Why are you downgrading this particular position?'

It is for that reason that we have changed an earlier view of the outline paper. I repeat that that outline paper was merely a discussion paper. It was as a result of research, talking to stakeholders and looking at what Mick Dodson said in his report—that is, the situation had been reviewed. If there is a situation in relation to urgency on the registrar, we are happy if the government wants to sever the bill, because the amendment I will move is a very small amendment that takes away that part in relation to a presidential member. If the Attorney-General wants to expedite the bill in relation to the amendments on the registrar, we think that is stuff that can be expedited. It improves the situation and gives further flexibility.

We say to you: think again. Take on board what we are saying. We are doing it because this is a difficult time. There are genuine views held on both sides of the House. But, on this issue, we believe the qualifications of the current presidential member has served the tribunal well. He has given credibility to the system. I think it would have been a lot worse if it had not been someone like Justice French with his position, his good sense, his integrity, his impartiality and his experience. Without all of that, the tribunal would have been in a worse situation in terms of the confidence of all the stakeholders.

For that reason, when it comes to the consideration in detail stage, I foreshadow that I will be moving the following amendment:

Schedule 1, item 2, page 4 (lines 1-8), omit the item.

We will divide on that amendment because we are serious about it. I wait to hear what the member for Swan (Mr Randall) has to say on this matter.

This will be debated in the spirit of what is best for the tribunal. As I say, we think the case on the registrar has been made out substantially by the government. We are prepared to accommodate them if they want to sever the bill so that it is not locked up in the Senate, although I do not know that it will be getting great priority in the Senate if it goes through in its present form. With that, I commend the amendment that we will be moving to the government because we believe it is the right choice to make at this time in what is a very difficult debate, and it is only going to get more difficult.