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Wednesday, 13 June 2007
Page: 147

Senator BARTLETT (6:30 PM) —The Democrats oppose schedule 1 of the bill in the following terms:

(1)    Schedule 1, items 62 and 63, page 16 (lines 1 to 26), TO BE OPPOSED.

(2)    Schedule 1, item 127, page 41 (lines 5 to 11), TO BE OPPOSED.

(3)    Schedule 1, items 138 and 139, page 42 (line 31) to page 44 (line 33), TO BE OPPOSED.

These items go the issues of alternative state regimes, conjunctive agreements and validation of the South Australian regime. I touched on this in my additional comments to the Senate committee report, as did Greens and the Labor Party in their separate comments. This is based around concerns raised in the submission from the Human Rights and Equal Opportunity Commission to the inquiry. So it is not something I have plucked out of my head; it is based on information that was provided to the inquiry. I think all senators would acknowledge the expertise of the human rights commission and the genuine way in which it engages with Senate committee processes, including this one.

I note the Labor senators’ comment about items 62 and 63 of schedule 1, as well as items 127, 138 and 139. The concern about retrospective validation of invalidly done future acts does have a risk of undermining Indigenous confidence in the Native Title Act. It shows that, just by passage of an amending bill, at any stage we could retrospectively validate invalidly done acts. Retrospectivity about a future act starts to get a bit confusing in the terminology, but it is retrospective validation nonetheless. I agree with the comments of the commissioner and others that further consultation with native title holders regarding validation would be desirable in this particular case. The commissioner said in their submission that retrospective validation ‘has served to undermine Indigenous confidence in the act, and undermines public confidence in parliament’s respect for and commitment to the rule of law’. The principle of doing something that adversely affects the rights and interests of others, and then retrospectively validating that act in order to avoid the consequences of it being invalid, is one that we need to be careful of. Those are the reasons behind the position the Democrats are taking on those items.