Mr ALLAN MORRIS(10.43 a.m.) —I want to speak to the Native Title Amendment Bill 1997 in a slightly different context. I think we need to cast our minds back a few centuries to when the major powers in the world were in the process of colonising all of the world. The fact is that most countries in the world were once colonies. Whether they were colonies of Britain, France, Belgium, Germany or Holland, the fact is that the majority of countries were colonies. The South American countries, the African countries, Australia and most Asian countries were colonies. Under the attitudes of the day, that seemed to be appropriate. The colonisation was not simply physical; it was cultural, religious and very materialistic.

Ever since then there has been an attempt to reconcile that process, and we have seen the emancipation of country after country, culture after culture and religion after religion as countries were given recognition and the right to determine their own affairs. That has not always been easy, because the so-called civilised world imposed on the so-called uncivilised world frameworks which were often inappropriate and incredibly paternalistic. In many of those colonising processes, there was a recognition of indigenous people, and I think New Zealand stands out as one of the stark examples.

It is also the fact that, for hundreds of years, there were rebellions, revolts and struggles by people throughout the world to assert their rights over their own territory. I can recall being in Guatemala in the late 1980s as part of an international conference, talking to the indigenous people there and recognising the struggle that they were still having. It became obvious that people of 14 and 15 were being killed to try to establish that they had equal rights as citizens. I can recall being in Dili in 1991, talking to East Timorese people and Bishop Belo, and looking at and trying to understand what they were trying to assert in terms of what they felt as indigenous people with the right to express their own cultural identity and with some sovereignty over what had been their country pre-colonisation by, firstly, the Portuguese and, secondly, the Indonesians.

What happened in Australia was very unusual because the British colonisers of Australia introduced a legal fiction. They pretended there was no-one here, so the terra nullius doctrine, for hundreds of years, gave a legal fiction to what was going on. This effectively meant that there was neither the need nor the compulsion nor the demand to reconcile the colonising culture with the indigenous culture. It has fallen to this generation to address that.

I find those people who keep talking about judge-made laws absolutely hypocritical because the same people have vaunted, and have spoken with great gusto about, the British common law system being the world's best legal system. We have talked about that for centuries. We have extolled it around the world. The fact is that the British common law system started to recognise native title in Africa in particular a long, long time ago. So native title did not start in Australia with our communities; it started in Africa last century and was identified and defined then.

After colonisation over 200 years ago, our indigenous people finally went to court and tested the British common law system. The Mabo decision was the first time ever that the Australian High Court was asked to arbitrate and to rule on the basis of British common law as to whether or not the indigenous people of Australia had any legal rights of title. I notice some of the Independent members shaking their heads. The fact is that that was the first time ever. The British common law said, in the High Court judgment, that they have rights and the rights are under native title, which is different to Torres title and different to all other kinds of titles. It was a concept recognised a century before and more. It was a concept recognised by the British colonial officers but not recognised by Australian administrators.

After us extolling our legal basis for so long, then having it tested in the High Court and our indigenous people being given, for the first time in over 200 years, some legal rights of title to land—and a very limited title—we have decided that somehow this cannot be true. What we are engaged in right now, if you like, is a 20th century colonisation. The first colonisation was with guns, with power, with disease and with deprivation; the new wave of colonisation is wiping out British common law. It is no different. We took away their rights, as colonisers, and pretended they did not exist. But hundreds of years later it was established, with incredible patience and stamina, that they do have rights. The new wave colonisers are us, right now in this parliament. This parliament is engaged in an act right now of recolonising Australia, by doing with this parliament and this legislation what the early colonisers failed to do.

This issue has ramifications way beyond that. When people want to start looking at Australia's stature in the world and how the world sees us, just keep in mind that most of the world's countries were ex-colonies—and most ex-colonisers have got out of the business. You do not see Germany colonising countries any more and you do not see Britain colonising countries any more; we are the only ones. We are now leading the charge for new style colonising.

Mr Rocher —What about Wales? The Brits colonised Wales.

Mr ALLAN MORRIS —They are decolonising Scotland and they are decolonising Wales right now. We are recolonising our indigenous people. That is what is so interesting. We are going absolutely against the rest of the world. If you are looking at all for any standing in the world, what we are doing is putting ourselves in the company of the original colonisers around the world.

Sure, we do not go out and kill people as they did in the past. But there is not much difference between killing them with guns or poison or by starvation and killing them by destroying their culture and their self-respect, and taking away their legal rights. This issue has ramifications for decades to come and way beyond Australia. We fail to understand what we are doing.

We as parliamentarians do visit other countries. We engage in dialogue with parliamentarians from around the world and you all know—every single one of you know—that the No. 1 topic for discussion when we visit anybody is: what are you doing to indigenous people?

Mr Rocher —Rubbish, absolute rubbish!

Mr ALLAN MORRIS —It is; don't pretend. We see Japan, after centuries, passing legislation to recognise their indigenous people. And we are doing the opposite. It has taken Japan literally thousands of years to recognise its indigenous people. We are seeing people around the world—the Canadians, the Americans—recognising their indigenous peoples. We have seen the events in South Africa. We are going against every world trend. We will be seen as the pariahs of the world. And what for? I do not know what for.

The fact is that this issue has given this generation an incredibly difficult problem. We did not choose to get it. I do not think our forbearers passed this on to us deliberately or consciously, but the fact is that we have it. It is an incredible challenge; it is an incredibly difficult challenge. There are no rights and wrongs. There is no moral high ground in that sense. There is simply an enormously difficult problem to resolve.

We will not resolve this problem by doing with legislation what the colonisers failed to do with extermination—because what we are talking about here is exterminating a culture. When Ronald Wilson talks about genocide, he means it, and it is true. Whichever way you go about destroying a people, it is still genocide—and you cannot get away from that.

Mr Filing interjecting—

Mr ALLAN MORRIS —This is not overdramatising. In modern day terms, `legislative extinguishment' of an indigenous people is no different. It is simply a modern form of poisoning their waterholes. It is simply a modern form of destroying their religions and destroying their culture.

This legislation is confrontationist, it is divisive and it is bound to fail. There is no doubt that the High Court will not uphold this legislation. This legislation will not give certainty. The only way we can progress is if we firstly recognise and respect both the rights and the needs of indigenous people. We must deal with that as a society. These people are part of our society. They have rights within our society. Any difficulties with how their rights and the rights of other people intercept need to be reconciled. Reconciliation is not simply saying that we will all talk to each other and start to change the way we treat each other. Reconciliation has to incorporate, fundamentally, recognition of the rights of each.

The fact is that British common law determinations in two cases—first, Mabo and, secondly, Wik—said that our indigenous people have substantial rights. Those rights are now defined and need to be reconciled. Those who talk about reconciliation on one hand and extinguishment on the other are playing some kind of mind game, and it will not work.

As I have said, around the world Australia will be seen as a pariah. This is not to say that we should do in Australia what other countries want us to do. But, just remember, we are putting ourselves in the same league as the colonisers of centuries ago. We are now the modern colonisers of the world, and we are probably the only ones—apart from the occasional American venture into various parts of South America or Asia, and even they have stopped. We are now the only country in the world which is colonising, but in a very sophisticated form, with all the glib words that the highest priced wordsmiths can muster in an attempt to obfuscate, obscure and pretend. We are doing it by divisive and emotive tactics in pitting Australian against Australian, indigenous against non-indigenous. What is taking place, I think, is an absolute national tragedy. But I do not think the majority of Australians will fall for it.

People talk about the Mabo legislation, its preamble and the comments made by the previous Prime Minister. The fact is that they have been borne out. The Wik judgment said that, if there is any conflict, that a lease has priority. That is absolutely clear. The idea somehow that there is uncertainty is nonsense. There is no uncertainty because the pastoral lease takes precedence over native title—and that is what was expected.

What we are seeing here is a political charade of sinister magnitude. It is a pretence that, firstly, the common law is somehow judge made. It is not. It never has been before. We have never seen in England a campaign against their judges for making common law decisions as we are seeing here. We then vaunt this common law concept as being the world's best system. We are pretending that certainty requires ownership only, and nothing else. We are pretending that, to do that, we will not be involved in massive cost and massive disenfranchisement or massive loss of legal rights.

This whole exercise is aimed at polarising and dividing. The only answer is for a negotiated outcome to be arrived at by those of us with responsibility for legislation and those people with rights—a negotiated outcome with which we can all live with dignity. This is not dignified; it is despotic. It is a parliament overriding common law judgment in two judgments. I have no doubt that, when this goes back to the High Court, it will be rejected again.

The whole thing is a charade, and that is reinforced absolutely by the government's actions with the Law Reform Commission. If they are so confident that their legal grounds are unshakeable, why gag the Law Reform Commission? If they are so confident that the High Court has made a mistake, why not allow into the public arena every bit of legal advice available? Why not allow a committee to discuss and question officers of the Law Reform Commission? If they are so confident that we are acting within the British common law system and doing it properly, why not allow really full debate on the stolen generation, and why not have a detailed response?

What we are doing in this parliament at this point in time is creating a massive problem not just for ourselves but for generations ahead. The world is watching us with interest as a country that talked with some right, if you like, about events in other countries. We fought in two world wars in the cause of freedom and civil rights. We speak on these issues constantly as a country. And what are we actually doing? We are removing civil rights, we are removing legal rights, because it does not suit us. I think Australia's status in the world is important to all of us. We are a small but incredibly fair country historically.

What is happening here is not fair. It will not stand up in court. It will lead to more uncertainty, to more division and to more hostility, and at the end of all that someone is going to have to sit down and negotiate a solution. Some time in the future someone is going to have to sit down with parliamentarians, with executive government, with indigenous people, and negotiate a solution which is compatible. This legislation does the opposite. It says, `We know what is best. We will override the laws.' It will do a whole range of things which, quite frankly, most of us find incomprehensible. There are pages and pages of schedules of lease after lease. I suppose the fact that the leaseholders include the Sultan of Brunei and God knows who else makes a sham of it all. We try to get a list of how many leases there are, how many leaseholders there are, who they are, and we do not know.

In amongst all of this there is one interesting point. The leases in South Australia in so many cases enshrine within them the right for indigenous people to access that land. In other words, our forefathers were actually reasonably aware in some cases. I think the contrast between the British Colonial Office and the Australian administrations in treatment of Aboriginal land rights and access to land is an incredible one. We are taking the side of the early administrators in Australia. We are denying centuries of history of British common law and British common practice. We chose a model which no-one else has. What is more, what we are doing today in this legislation is taking it a step further. It is a dark step, it is a nasty step, and it will not succeed in creating certainty and correctness.

An incident having occurred in the gallery—

Mr DEPUTY SPEAKER (Mr Nehl) —I do appreciate and understand that there are some people in the gallery who have a significant interest in the legislation before the chamber. I also am aware that people in the gallery have already been warned about the need to observe the courtesies and the standing orders of this House. For your information, I would like to advise you that admission to the galleries is a privilege extended by the House, and people attending must conform with established forms of behaviour. People visiting the House are presumed to do so to listen to debates, and it is considered discourteous for them not to give their full attention to the proceedings. Thus visitors are required to be silent and to refrain from attempting to address the House, interjecting, applauding, conversing and so on. So I do advise you of that for your information, and suggest to you that it would be much more appropriate if for the remainder of this debate you observed the normal courtesies.