Senator BOLKUS (10:23 PM) —With respect to 135A, which we deferred just a few moments ago, our advice from people who have been leading these cases in the courts is that our position is sustainable constitutionally. The provision that we seek to effect is on page 105 of the government's bill. If you look at 38(1) it says that:

. . . the arbitral body must make one of the following determinations:

(a) a determination that the act must not be done;

(b) a determination that the act may be done;

(c) a determination that the act may be done subject to conditions to be complied with by any of the parties.

Those provisions obviously have the direct implication that the arbitral body does have a capacity to make determinations in respect of a whole range of factors and conditions. It could very well be argued that amongst the conditions that it can make are financial conditions. The concern we have is with subsection (2) which basically says determinations can be made over a whole range of things, but, under subsection (2), you cannot look at the profits, the income, or anything that is produced, of any party in relation to land or water concerned.

Basically, we have a government that, on the one hand, wanted to ensure that when making a determination, either a minister or a tribunal could look at the impact of native title on the financial viability of a particular company, but, at the same time, denies the tribunal the power to make any determination as to conditions on which native title or interests can be protected on financial grounds. That is one of the problems we have.

In terms of determinations: we are not saying that determinations that we would like to see as part of the capacity of the arbitral body—that is, financial conditions—should have any different strength, status or effect than any other determination. The way determinations are treated is provided in section 41(1) which basically says that the determina tion or agreement has effect as if the conditions were terms of a contract amongst the negotiating parties.

So, Senator Harradine, we are not saying that the determination should have any augmented power or effect; we are saying it should have the same power and effect as any other determination made by the arbitration body in this particular proceedings. As a consequence, I would argue very strongly that, if the government's regime and the effect that the government provides for determination is sustainable constitutionally, then so, of course, would be any determination as to financial conditions. We are not arguing that those determinations have any extra strength. On that basis I think the committee should in fact be satisfied that the concerns as to constitutionality are not really well founded.