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Thursday, 29 May 1997
Page: 3996


Senator BOLKUS —My question is to Senator Herron, the Minister for Aboriginal and Torres Strait Islander Affairs. Minister, is it just a debating matter and a political ploy to ask you, the Minister for Aboriginal and Torres Strait Islander Affairs, what constitutional head of power your government will be relying on to legislate on something as critical and significant to Aboriginal affairs as the 10-point plan? Is it not the case that you have avoided answering this question every time you have been asked it?


Senator Campbell —You didn't worry about it in 1993, did you? You didn't worry about using it.


Senator BOLKUS —Minister, is it just too much for the Senate to expect you, as the responsible minister, to answer such a simple and vitally important question?


Senator Campbell —What a hypocrite. What a bunch of hypocrites.


Senator BOLKUS —Minister, I ask you again—


Senator Campbell —You voted for it. We didn't. You used the race power, you hypocrites.


Senator BOLKUS —will the government be relying on the race power, section 51(xxxvi) of the constitution, to legislate your 10-point plan?


The PRESIDENT —Order! Senator Campbell, would you withdraw that interjection please?


Senator Campbell —I unconditionally withdraw, Madam President.


Senator HERRON —Madam President, I am not a lawyer. Senator Bolkus knows that.


Senator Vanstone —He's not either.


Senator HERRON —He's not either?


Senator Vanstone —He might have a law degree.


Senator HERRON —He may. I am sure that he pays for his own telephone calls too—and makes them, what's more. I am not a lawyer, so it is not appropriate for me to give a legal response. But I am happy to make a few comments and I will do so in that regard.

In the native title case, as Senator Bolkus quite correctly says, the High Court held that the Native Title Act 1993 was supported by the races power in section 51 of the constitution.


Senator Jacinta Collins —Racist power?


Senator HERRON —I said `races', Senator Collins. If you clean your ears out, you might hear more easily. As a surgeon, Senator Collins, I am happy to volunteer my services.

The Native Title Act sought to balance the interests of native title holders with those of others with interests in land: governments and resource developers. The act contains some provisions which were beneficial to native title holders but also some which could be characterised as detrimental, such as the validation of past acts because of native title and allowance of the compulsory acquisition of native title rights. Generally, the High Court has regarded the power as allowing special legislation detrimental or beneficial to people of a particular race.

The 10-point plan does propose amendments to the Native Title Act, which in some cases will reduce the current rights of native title claimants and holders. However, it will also maintain many of the beneficial aspects of that legislation. In particular, it will continue to be a law which seeks to protect native title, certainly to a greater extent than the common law does.

It will seek to balance the interests of native title claimants and holders with those with other interests in land such as pastoral lessees, governments and resource developers. The aspects of the plan detrimental to native title claimants and holders are similar to the aspects of the current Native Title Act which are detrimental to native title claimants and holders. That was the point that I made to Senator Bolkus previously which he alleged I had not replied to.

The Native Title Act already has a validation regime which under the plan will extend to acts done before the Wik decision in the mistaken belief that a pastoral lease extinguishes native title. The act already allows the compulsory acquisition of native title rights in the same way as other landholders' rights may be compulsorily acquired. The act already allows states and territories to confirm ownership of natural resources, to confirm access to waterways, beaches and public places and to regulate water which will be strengthened under the 10-point plan.


Senator BOLKUS —Madam President, I ask a supplementary question. It is good to note that yesterday's debating point has now turned into a prepared brief, which the minister had trouble reading. It is also worth noting the minister's observation that the overall effect of the Native Title Act is beneficial to Aboriginal Australians. Given that the Prime Minister has said that your 10- point plan is a significant winding back of common law rights, does the government believe that this race power section of the constitution can be used to legislate to the detriment of Aboriginal and Torres Strait Islander people?


Senator HERRON —This is where we come to the debating point I mentioned yesterday and which Senator Bolkus has pursued for some months now through estimates.


Senator Bolkus —You have no idea, have you?


Senator HERRON —Yes, I have. He just said that I have no idea. He has not even listen to what I read before and I will say it again. Generally the High Court has regarded the powers allowing special legislation detrimental or beneficial to people of a particular race. Have you got that, Senator Bolkus? Do you understand it? Have you listened to it? Because that is what it said, that is what I said before and that is the answer to your supplementary question.