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Wednesday, 29 October 1997
Page: 8296

Senator MARGETTS(10.39 a.m.) —by leave—It is useful to allow the National Native Title Tribunal to quickly fill a temporary vacancy in the position of registrar. It is acceptable to provide for the functionary role of registrar to come from a more diverse field of suitably qualified candidates. And it is sensible to have further clarification of when a member of the tribunal is considered to have a conflict of interest in relation to an application or inquiry before the tribunal.

But the fourth change that is proposed in this bill is far more problematic. Currently, only Federal Court judges or former judges from any jurisdiction can be appointed as presidential members, after the relevant documentation crosses Mr Howard's desk. The bill seeks to change this requirement so that a person who has been a legal practitioner for at least five years can be appointed as a presidential member, and this inserts a new subsection in the table contained in section 110.

Currently, there are five presidential members, including the President, Justice French; and 13 ordinary members of the tribunal. Two of the current full-time ordinary members are Aboriginal. An ordinary member is only required to have been a legal practitioner for at least five years. The main difference between an ordinary member and a presidential member is the power to direct. For example, only a presidential member can direct the registrar not to accept an application because it is vexatious or frivolous.

The principle of non-judges being appointed to presidential positions may appear on the surface to be perfectly reasonable; for example, many experienced practitioners may have extensive knowledge about Aboriginal issues. Secondly, judges are nearly all ruling class middle-aged white men—and this is a paradigm which should be broken down; and to select from a select pool of people could be considered as inappropriate for the Native Title Tribunal. To this end, there are no Aboriginal or Torres Strait Islander judges or ex-judges in Australia. Thirdly, the current President, Justice French, is on record as supporting the proposed changes. In his August 1996 submission on section 110, Justice French said:

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

My fourth point is that, in addition, the government appears to be finding it difficult to find presidential members. Justice French wishes to resume his Federal Court duties but has recently been persuaded to remain until at least the end of the year. There does not appear to be in the NTA any provision for the position of Acting President. In addition, the government can no longer compel judges to sit on tribunals—and that came in Wilson v. Minister for Aboriginal and Torres Strait Islander Affairs. However—and this gets to the heart of the matter—it is unclear whether the government is simply rejecting many possible appointees, especially ex-judges, because those willing to take up the job are perceived as being too progressive.

Very importantly to the Greens, Aboriginal people we have spoken to, such as Commissioner Mick Dodson and others from various Aboriginal corporations, believe that the requirement that presidential members come from the judiciary should remain. There are a few reasons for this. Firstly, they believe that the government is wanting to open up the field not to appoint presidential members who are more appropriate but, to the contrary, to appoint people who will do the government's bidding.

Secondly, they believe that it will lower the stature of the National Native Title Tribunal, which has come under considerable attack in recent times, and that this will become just another area where Aboriginal people's fora are downgraded. Thirdly, judges are less likely to be influenced by the government which has appointed them than a lawyer. Judges have had the experience of working in an environment with clear separation of powers, and will respect the need to remain independent.

Commissioner Dodson in particular has much more trust and respect for the judiciary than the government. In our conversation last Friday, he said that it was the judiciary who gave Aboriginal people native title and the government which is attempting to extinguish it—and that, of course, is a salient point. Commissioner Dodson wrote in his 1995-96 Native Title Act Report:

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.

The importance of Aboriginal people having faith in the independence and standing of the NNTT is absolutely crucial. Given the current attacks on Aboriginal people by this government, it would undermine the whole native title process if Aboriginal people felt the tribunal was `stacked out' with government lackeys.

Why should we not look at any changes that the government makes with regard to the native title process with extreme scepticism? After all, it is this government which, in the words of the Deputy Prime Minister (Mr Fischer), is seeking to enact `bucket loads' of extinguishment. It is this government which is seeking to destroy the right to negotiate process, including, under proposed section 36, taking away the tribunal's power of determination with regard to future acts when the minister considers that a decision has not been reached in a `reasonable' time.

When it comes to native title, one shudders to think what a minister of this government would consider to be reasonable. It is this government which is proposing, under the new section 82, to change the rules of evidence to make it far more difficult for Aboriginal people to present evidence in a manner which takes into account their cultural concerns. We heard from Senator Evans today a disgraceful story of a situation where the traditional owners of an area did not have the courtesy of having their evidence translated to be made available to the Senate and the people of Australia. That is the situation we are dealing with.

Against the trend in law to make rules more flexible, this government wishes to reimpose the hearsay rule to exclude genuine evidence from indigenous claimants. Perhaps they will also exclude evidence that is not in English. Well, we are an English speaking country, are we not! The utterly ethnocentric proposed section 82 really seems to echo the shameful mutterings of the member for Oxley (Ms Hanson) more than that of the government, which has a serious debt and responsibility to the Aboriginal and Torres Strait Islander people of this country. It is part of the continual scapegoat politics mentality in Australia. That is, take your eye off the ball, the main game—that is, what is happening in the country with social issues, the gap between the rich and poor, unemployment, and the attacks on the community—and push that ball on to those people who have the least ability to be able to fight back. That is scapegoat politics.

Why should we believe this government when it says that it only wishes to remove the requirement for the President to be from the judiciary in order to `open the field'? This government has created a climate of mistrust with regard to Aboriginal affairs which has not existed since the dark times when indigenous people were considered non-citizens. It cannot now expect us to take it on good faith that this change is being enacted to enable the appointment of a more appropriate President. The fear is real and apparent that this government is more likely to use this amendment to appoint someone far less appropriate.

The government has made mention of the necessary scaling back of presidential powers of determination due to the effect of the Brandy case, which held that administrative tribunals cannot act in a judicial capacity. However, it is currently unclear—and research is being conducted—whether the removal of powers, such as being able to reject an application, are necessarily due to the effect of the decision in Brandy or whether the government is seeking to weaken the National Native Title Tribunal for political reasons. In any case, even if the Native Title Amendment Bill is enacted, the President will retain significant powers as the chief decision-maker of the tribunal, and any suggestion that such a role is purely administrative is inaccurate.

Clearly, I have signalled the fact that the Greens (WA) support the ALP's intention to omit schedule 1, item 2, which seeks to weaken the role of the President. I think this is vitally important. We are hearing in the media today of a proposal in the lower house to put some sort of beads and trinket amendment to the Native Title Amendment Bill. From this we can assume that none of the issues raised by the 1,600 people who gave evidence and produced submissions to the joint standing committee is important enough to be taken notice of. Perhaps some of the evidence was taken notice of but not other parts.

We can also assume that somehow or other it will be fair and reasonable to extinguish native title and to offer freehold title on crown land which nobody else wants—that is, until someone finds something which they want to mine—and which is not and never will be anywhere near a town. That is the beads and trinkets approach that we have got from the government and from coalition members. That is why nobody in their right mind would support the downgrading of the presidency of the Native Title Tribunal.