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Monday, 14 September 2009
Page: 6365

Senator TROOD (12:31 PM) —When Senator Brandis spoke on the Native Title Amendment Bill 2009 last week, he made it clear that the coalition support the aims and objectives of this piece of legislation. We well recognise that there is a need to undertake reform of the process by which native title is determined in this country. I know the slow rate of resolution and finalisation of native title claims is a matter of widespread concern in the parliament, certainly on this side of the parliament, so much so that it would appear that existing native title matters for resolution might not be determined until the vicinity of 2035, which is of course a long way down the track. That is really a very unacceptable time frame. Indeed, the average time spans that now seem to be required to complete a determination are in fact themselves a worrying matter. Even for consent claims it is in the vicinity of five years and seven months before there can be a settlement of these claims. If litigation is required for settlement, and that is not unusual, the figure actually moves up to six years and 11 months. So, whether or not these are consent claims and whether or not they are litigated outcomes, it is taking somewhere in the vicinity of five to six years to resolve these matters.

The Howard government introduced quite extensive amendments to the act in 2006 in an effort to try to address this situation. I have to say that in the time that has now passed we really have not had a good opportunity to test the success of those amendments. In some ways the changes before us are perhaps rather premature. Nevertheless, the objective is to try to speed up determinations and in that context we are indeed very supportive. There is a need to do that.

I am not particularly confident that these particular proposals, the amendments that are contained within this bill, are actually going to make material change to the speed with which there is resolution of these matters. It seems to me that the issues which are at the core of resolving native title claims are really matters about the accumulation of evidence and presenting the evidence in a persuasive way. It is not obvious to me that these kinds of interventions of a procedural nature are necessarily going to solve the problems which are besetting the system. In fact, Mr Tony McAvoy, a very experienced barrister in the field of native title matters, in evidence before the Senate Standing Committee on Legal and Constitutional Affairs when it looked at this particular bill, was asked whether or not he thought the reform in these particular amendments was likely to make a significant change to the speed with which these matters were resolved. He answered:

… my personal view is that it will not make any significant change to the speed with which matters are resolved.

So from one who is already in the system the intimations are not very encouraging that we are going to improve the situation. But we ought to be trying and, in the spirit of an effort to try to resolve this problem, the opposition support these amendments.

However, we do have some concerns over the amendments and the direction in which they are moving. In my remarks on this bill I want to draw attention to those concerns that the opposition have about the amendments and the likely impact that they might have on the whole determination matter. I suppose the first and obvious place to begin is the consequences that these amendments might have in relation to the Native Title Tribunal. The tribunal has a central role to play in determinations. The 2007 amendments which were introduced provided to the tribunal a right of appearance before the Federal Court. It seems that the amendments before us are going to withdraw that right of appearance. They are also going to have some widespread consequences in relation to the tribunal’s capacity to be able to provide information to the Federal Court as it takes a larger role in the determination activity. I think the question that we ought to be asking ourselves is whether or not there is something of an ideological agenda here—whether or not the government’s reforms are really less related to a sober and serious assessment of what might be required to try and improve the speed of determinations and ensure that justice is done in relation to those determinations and that, rather, a view has been formed on the government side that the Native Title Tribunal ought to be more marginalised than it is in the process and that these reforms, these amendments, are actually proposed with a view to prosecuting that particular ideological agenda.

The Federal Court will in the end have a very central role to play in the management of determinations, and I will say a bit more about that in a moment. It will also mean that these amendments will marginalise the native tribunal, and I ask myself: to what end? How will that necessarily improve the process by which we reach a determination in many of these cases? It seems to me that the likely consequence will be that the court will be deprived of a very valuable resource in trying to settle these matters with expedition and justice. That is a matter which, I think, the coalition will watch with some interest to see whether or not that is, in fact, the outcome.

As I said, the consequence of these amendments will be that the Federal Court will have a very central role in managing the native title claims which come before it. There is an amendment proposed that subsection 86B of the act, which currently requires that every native title determination application goes before the tribunal for mediation, be removed. Instead, under this bill, the court will be required to send applications for mediation, not necessarily to the tribunal but to ‘an appropriate person or body’, which is the actual phrase contained within the bill. In speaking to this bill the Attorney claimed that it would give the court a central role in managing all native title claims, including deciding who mediates the claim, and I think that that will, indeed, be the consequence of the amendment.

The question that comes to us on this side is: why has the court not actually exercised the power already available to it to take control of native title claims?—which it has been able to do over the last several years. I am a great admirer of the Federal Court and I am a great admirer of the jurisdiction. I think the expedition with which justices of the Federal Court exercise their powers and the speed with which they dispose of their cases is a standard to be emulated by other courts around the country, certainly by some of the state supreme courts, which have been very tardy in disposing of issues. There is no question, at least in my mind, that the Federal Court will act judiciously in this particular matter. However, I do have a question—and I think the opposition has a question—as to why the court has failed to exercise the opportunities which have already been made available to it through amendments to the act some time ago. Nor is it clear to my mind as to why procedural directions are necessarily going to advance the cause or progress of determinations. It may well be that giving parties particular directions, clear instructions or perhaps intervening more regularly in the whole process will advance the determinations. It will provide speed, it will provide expedition and one hopes it will provide the measure of justice which is required. But it is unclear to me that this will be the consequence by just this process itself.

I dare say that we have all heard stories about some of the legal practitioners involved in this area of law, including, for reasons of their own when acting on behalf of the Indigenous communities involved, that they take a less than diligent approach to some of their clients’ interests. That in itself has been, on the evidence that I have heard from practitioners and those involved in these claims, a problem in determining the outcome of many of these cases. The opposition will be watching to see whether or not these particular reforms, and whether giving the court the opportunity to intervene more actively, are going to deliver the outcome that is expected. It is not clear to me at this juncture that that will be the result.

The third point I wanted to make about the court in general terms is that this amendment will impose another burden on the resources of the Federal Court. It is a court that already has a very large jurisdiction. The opposition would be particularly sorry and regretful if, in fact, one of the consequences of these amendments was that there would be extra resources demanded of the court which the government was unwilling to provide. The registrar of the court, when giving evidence to the committee, assured us that he did not think that this was going to be a difficulty, and I hope that is the case. But it is important that, if these powers are to be exercised truly and with the intent with which the legislation will be amended, the court has the resources to act as it needs to.

We recognise the value of mediation in these proceedings. Mediators can provide a very useful role in relation to the settlement and determination of native title claims, but we are concerned about the dangers of inconsistency and fragmentation of process in the way in which the mediation proposal is set out in the legislation. Mediators have a role to play, but I think it is important that they exercise their powers in a consistent fashion. Some of the evidence that the committee heard when examining this bill suggested that there is a danger that the process of determination of native title claims could become ad hoc, fragmented, less efficient and more expensive as a result of these changes.

Dr Levy, some time ago in an examination of the process of reform in relation to the Claims Resolution Review, made the point that the kind of discretion which is now being given to the court to engage mediators, other than the tribunal, could in fact:

… exacerbate the current problems in the native title system by further proliferating concurrent mediation, thereby leading to cost and effectiveness implications.

So there are already concerns about this kind of process, and the government seems not to have taken those concerns seriously and has pressed on with the way in which it is proposing these amendments. There is a danger of inconsistency. There is already some suggestion that the way in which the various justices of the Federal Court are acting has introduced a measure of inconsistency in the process. That seems to me to be an undesirable dimension of resolving these matters.

There is also a second question with regard to the mediation that is of concern to the opposition—that is, the qualifications of mediators. The bill is silent essentially on defining who might be an appropriate mediator—it takes what might be regarded as a kind of minimalist approach in relation to this matter—whereas, in contrast, tribunal members are required to fulfil certain qualifications. The presidential member must be a judge or a former judge, or have been enrolled as a practitioner for more than five years. The tribunal members are appointed by the Governor-General. None of these particular restrictions, none of these particular constraints, are going to apply with regard to the appointment of a person or a body who might be appointed by the court to mediate on these matters. I think we are entitled to ask questions about whether or not they will have experience in relation to native title claims. Will these people be on a pool list from which the court will be required to draw? Will they be existing mediators, people who have already had some experience in dealing with these questions? None of these matters have been answered, and so the wider question of the qualifications of mediators and the experience that they might have remains unsettled. I think that is rather disturbing when in fact both the justices of the Federal Court and the existing members of the tribunal all have to reach certain standards in relation to their qualifications before they could actually be appointed. There seems to be no such proposal in this bill.

That is of concern to us because the mediators themselves will be given considerable coercive powers under this new legislation. They will have the power to direct parties, refer questions, direct a party to attend a conference, exclude persons from a conference—a wide range of powers which are supposed to have the capacity to be able to advance the case. It seems to me that we ought to be careful about giving these kinds of coercive powers to people with limited qualifications, or over which the act itself proposes no particular accountability. There is almost nothing in these amendments which is going to improve the accountability or the transparency with which mediators are appointed. From a coalition perspective, that seems to be a weakness. It may be that having these kinds of coercive powers is a necessary part of mediators settling these issues, but we would much prefer that they be constrained to some degree and it be clear in the legislation as to the kinds of qualifications that we would expect these mediators to have.

Finally, in the time that remains I would just like to make the point that the Liberal members of the committee were concerned at the suggestion by some witnesses before the committee that there had been limited consultation in relation to the amendments to this legislation. The President of the National Native Title Tribunal, Mr Neate, gave evidence before the committee. Indeed, I specifically asked him whether or not the Attorney or representatives of the Attorney had consulted him about the reforms. His answer was:

I was advised of the announcement of the proposed changes immediately prior to them—the day before.

Somewhat surprised by this response, I asked for clarification. He said:

… the Attorney rang me the day before the announcement and advised me of it.

This hardly seems a satisfactory way to proceed on a matter which is so vitally important to the Indigenous community. These are matters about which there ought to have been wider consultation, and it is a disgrace that the government would seem, at least on the evidence the committee received, to have failed to undertake that kind of consultation. At the very least, one would have thought that the president of the tribunal would have had his views actively and extensively canvassed in relation to these reforms, but that was not done on this particular occasion.

In summary, I hope these reforms work. I hope there is some improvement in the speed with which these matters are determined. There is an urgent need for there to be an increase in the speed of determinations, down from that five- to six-year period. My fear is that this is a rather ideological agenda that the government is imposing on the native tribunal system. They are amendments which have been imposed as a result of some view that exists within the government as to the best way to proceed rather than as a result of some serious and sober consideration of what actually is required to address this serious problem. The opposition will be watching the changes with great interest and hoping that they lead in the direction that the government anticipates. But from my perspective, I have a high degree of scepticism that it is going to achieve the results that are proposed.