Senator MINCHIN (Special Minister of State;Minister Assisting the Prime Minister) (12:49 PM) —I think I put last Friday the government's reasons for opposing all the proposed amendments on the Racial Discrimination Act. Our position has not changed since this matter was debated last December. The only difference in the proposition being put before us now from that which was put last December is the addition of the note, which I guess purports to try to limit the operation of the provision but, regrettably, the substantive part of the clause has not changed. It still reads that this act is intended to be read and construed subject to the provisions of the RDA. The only exception is the validation regime. From the government's point of view, that still leaves the degree of considerable legal uncertainty which motivated the previous Keating Labor government to consider and reject the inclusion of such a provision in the original Native Title Act. As I said, a particular provision was inserted in that act which we have retained in the Native Title Amendment Bill.

I refer senators to what Father Frank Brennan has been saying and indeed what he said in today's Australian on this matter. It hardly needs to be said that Father Frank Brennan is a great supporter of the Aboriginal position on this issue, not the government's. As he said today in the Australian:

Since Wik, people have confused the two issues of non-discrimination and making the new law "subject to the RDA". It is essential that any law be as non-discriminatory and certain as possible. Now there is a new RDA problem: any legislative regime implementing Wik has to accommodate prevailing pastoralists' rights over yielding native title rights.

Such a regime cannot be rendered subject to the RDA because the RDA ensures that all rights are treated the same. If the Aboriginal and government lawyers can come up with a Solomon-like compromise on the RDA, well and good. Otherwise the Senate should leave it well alone.

I think Father Brennan has identified the considerable problems just in one area alone—that is, accommodating the High Court's decision, which we are doing in this bill. The High Court said that, where native title rights have survived and they run into the operation of the pastoralists' rights, then, as a matter of common law, the rights of the pastoralists shall prevail. Why this area is difficult is that not only are we dealing with the interaction of laws that for the first time really involve a property right that is inherently only available to people of a particular race, but that right is founded in the common law, which is, as a fundamental part of our legal system, always subject to statutory rights.

As you would know, democratically elected parliaments make statutory law and courts make common law, and statutory law will always prevail in any circumstances. Here we have a situation where the common law right is available only to people of a particular race and, therefore, not surprisingly, the High Court has said that, where there is any clash, the statutory rights prevail. In many cases, as we know, the statutory rights are held by Aboriginal pastoralists. There are Aboriginal pastoralists who exercise these statutory rights and, where their statutory rights conflict with the surviving native title rights, their statutory rights must prevail, as a matter of law, as declared by the High Court.

Therefore, in the words of Frank Brennan, it is impossible to impose this sort of provision. The Labor Party's wording still leaves it open to someone to propose that each and every provision of the Native Title Act be read and construed subject to provisions of the Racial Discrimination Act. It does not eliminate that possibility. We do not believe the note, of itself, is a sufficient limitation on the potential operation of this clause.

We have to remember that we are talking about a Native Title Act which, as I said before, is probably the most significant federal imposition on land law and land management in this country. It means that virtually every major development on 79 per cent of Australia must comply with that act. If everything done potentially under the Native Title Act is subject to being subsequently challenged by a litigant claiming that there is some inconsistency with the RDA, it would be a legal nightmare, for the reasons most eloquently put by Senator Harradine before lunch in a previous debate.

This is a proposition, as I say, the Senate considered in 1993 and rejected because of the potential legal implications—the legal chaos that could result, the legal uncertainty over thousands and thousands of titles issued under this act and the potential nightmare of every provision being challenged. We maintain that the act, as amended, will continue to be beneficial to Aboriginal people. If there is a view that that is not the case, then of course that can be challenged in the High Court and the High Court can decide whether there is any infringement of the races power. But it is simply unworkable and unacceptable and producing of enormous uncertainty to subject the Native Title Act to the provisions of the Racial Discrimination Act.