Senator BOB COLLINS(8.15 p.m.) —by leave—I move:

(1)   Page 1 (after line 8), after clause 2, insert:

2A Racial Discrimination Act to prevail

   (1)   For the avoidance of doubt, it is expressly declared to be the intention of the Parliament that the terms of the Racial Discrimination Act shall prevail over the provisions of this Act.

   (2)   Nothing in this Act shall be taken to authorise any conduct, whether legislative, executive or judicial, that is inconsistent with the operation of the Racial Discrimination Act.

(2)   Clause 3, page 2 (after line 7), after the definition of pit area , insert:

   Racial Discrimination Act means the Racial Discrimination Act 1975 .

I will not speak for much longer on this, Minister. There are just a few points I want to make. Before the dinner suspension, the minister mentioned the distinction that he drew between the Social Security Act, which had the amendment that is before the Senate now moved in the same terms. It makes interesting reading. When you have a look at the Hansard pinks, it just indicates the difficulty that the government has actually making this distinction. This is what the minister said:

I would like to respond to some of the points raised. Senator Bob Collins raised the social security bill and tried to draw an analogy between that and the government's response. I do not think that is valid because there can be no comparison. The Hindmarsh Island legislation and the building of a bridge has been a highly litigated issue, as you know, over three years at least with the expenditure of over $4 million. To draw an analogy or suggest an apparent inconsistency with the social security legislation I think is invalid.

That is it. I point out to the committee that—and I am not going to protract this issue: we have been over the ground enough times—all of that litigation and money had absolutely nothing to do with any argument about inconsistencies in the Racial Discrimination Act.

So what the relevancy of that distinction is in respect of this particular question, I do not know. It had to do with all of the reports and all of the disputes and the fact that ministers did not read the secret information and so on and so forth. I will not stray on that.

There is one other matter that I do want to correct. The minister went on to say that the `opposition opposed precisely this amendment'—which of course is wrong—`to the Native Title Bill in 1993'. I was here during that debate. I recall what the minister was referring to. What a pity he only told half the story, because the other half is actually in the act as section 7. That is not correct either.

My memory of what happened—and the Greens and the Democrats and Senator Kernot may have a more precise recollection—was that effectively there was an assurance that this did not affect the operations of the RDA. One bit was moved by the Democrats and another bit was moved by the Greens. During the negotiations over getting those two bits together, a compromised form of words was, in fact, suggested by former Senator Gareth Evans, who had the carriage of the legislation. That was agreed to, and it appears as section 7 of the act.

Senator Kernot interjecting—

Senator BOB COLLINS —I am glad to have that confirmed by Senator Kernot. Section 7 states:

Racial Discrimination Act

Operation of RDA not affected

7(1)   Nothing in this Act affects the operation of the Racial Discrimination Act 1975.

That was a distillation drafted by former Senator Evans—and I was in here when it happened—of a number of amendments of similar kind moved by both the Democrats and the Greens. This was a distillation of all of that.

So the information that we rejected the amendment is absolutely untrue. There it is in the act. It is part of the law. Minister, if you concede that that argument is flawed in terms of you advancing it as an argument against accepting this, I think in true justice you would have to now tap the mat and agree to support the amendment, or maybe you could redraft it so that it reads in exactly the same way as the one we accepted to the RDA.

I simply conclude by saying that, in respect of a number of other statements that were made about the cost of reports and the length of time for reporting, the minister would be well aware—but other members of this committee would not be aware—that the matter was canvassed at some length during the Senate estimates processes and questions that I asked ATSIC officers. We started off with answers that said that the cost could be between nought and a million. I commend the ATSIC officers. They knew exactly where I was heading. I commend their professionalism in trying to do the right thing as best they could for the minister.

I pursued the issue. The ATSIC officers—and, of course, it is ATSIC that is going to have to pay the bill for this, should there have to be a report at any time—said on the record, and it is in the Hansard, their commonsense estimate—and, Minister, I concede that these are rubbery figures—of where they thought it might or most likely would end up. The period of time for the report was two months and the estimated cost was $100,000, which I think is probably close to the mark.

Senator Herron —$200,000.

Senator BOB COLLINS —Was it $200,000? I thought it was $100,000, but I will not press you on that. It was $200,000. It is a long way from the million, of course, which got a real workout here in the chamber. Again, I do not raise that, Minister, as any substantive issue. The substantive issues are that, once again, some red herrings have been thrown in our path tonight. The fact that a lot of money was spent on this act had nothing to do with the RDA—nothing whatever. Again, it just shows you how difficult it is for the government to try to really make a case for why they accepted this amendment without question in respect of social security but will not with this.

I have to say again that the assertion that we rejected this amendment in 1993 is so flatly wrong that it actually became section 7 of the act itself. I urge honourable senators to support it. Let me say, Minister, that if there is an inconsistency with the RDA, there will be a challenge to this act, whether this amendment is carried or not, if someone asserts that it does conflict with the RDA. If it goes through unamended or if it goes through amended, there will still be a challenge to the act.

I have to say that the only defence that the minister can offer, and he has not yet run it, as to why the amendment therefore causes him any complications is if he is concerned that his advice might be wrong and that a court would determine that, because it is a later act of the federal parliament, without this particular amendment it does not in fact technically in a legal sense transgress the Racial Discrimination Act for the simple reason that it overrides it, which is something, of course, that the government has said consistently is not its intention. So I guess what we are saying is, `Prove it.'

Minister, without going in gory detail through the Evatt review, I would also point out that there is also information right up front in the Evatt review—not, I might add, argued by anyone in this chamber. It is on page 15 of the Evatt review. It is listed, of course, under Aboriginal concerns about the operation of the act, from their perspective, not going far enough. The heading is `No obligation to make a declaration'. It reads:

2.33. Aboriginal people are critical of the Act because the power to protect areas and objects is discretionary.

That is a fact.

The Minister is not obliged to act, even if an area is of significance to Aboriginal people—

A point made again and again, as senators know, in debate in here.

He/she can revoke a declaration without any express requirement to consult the parties. The Act does not specify criteria which, when established, confer a right to a declaration. The political nature of the discretion is discussed in Chapter 10.

That is simply a matter of fact. There is no obligation to make a declaration and the minister is not obliged to act even if the area is of significance to Aboriginal people. That absolute discretion under the act, as was confirmed in the recent Boobera Lagoon decision by a court, has always been there. This whole thing has been a furphy from day one and a political beat-up of the highest order.

After this bill passes the Senate—with this amendment, should it pass—there is nothing whatever, so far as this federal parliament is concerned, to prevent the construction of that bridge commencing immediately. So what I suggest to the minister and to all honourable senators, to conclude this debate in the quickest time possible, is for the Senate to support the amendment and to pass the amended bill and to build the bridge.