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Thursday, 12 May 2011
Page: 2402


Senator BRANDIS (QueenslandDeputy Leader of the Opposition in the Senate) (10:19): Might I begin by complimenting Senator Xenophon on a fine, thoughtful and idealistic speech. On 3 April 2009, the minister for Indigenous affairs, Jenny Macklin, announced that the Labor government had decided that Australia would become a signatory to the United Nations Declaration on the Rights of Indigenous Peoples, and that has since happened. In her speech making that announcement on 3 April 2009, Ms Macklin described the declaration as a 'landmark document', both 'historic and aspirational', by which, as she said:

We show our faith in a new era of relations between states and Indigenous peoples grounded in good faith, goodwill and mutual respect.

Fine words.

Article 26 (2) of the UN Declaration on the Rights of Indigenous Peoples, to which the Gillard government has subscribed, provides—just listen to this, Senator Fielding, please:

Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.

So the Labor government and the minister for Indigenous affairs, Ms Macklin, have patted themselves on the back for subscribing to this declaration, the UN Declaration on the Rights of Indigenous Peoples, which contains that guarantee, the guarantee in article 26 that Indigenous people have the right to own, use, develop and control their traditional lands. By a crowning irony, on the very day that Ms Macklin made that speech, a thousand miles to the north, in Brisbane, the Bligh Labor government gazetted three major river systems in Cape York—the Archer, Lockhart and Stewart Rivers, their catchments, tributaries and floodplains—under the Queensland Wild Rivers Act 2005. The effect of the gazettal by the Queensland government on 3 April 2009 was to make it impossible for the Indigenous people—the traditional owners, the people whom we acknowledge and pay respect to every morning as this chamber convenes—to use, develop or control those traditional lands. How remarkable—the high-toned sentiments of Minister Macklin in Canberra and the reality of a cynical state Labor machine in Brisbane on the very same day saying one thing and doing another. There could not be a more stark example of the rule that the Labor Party says one thing but does the opposite. And what the Queensland Labor government did on this occasion was a peculiarly wicked thing to do. It destroyed the economic livelihood of the traditional owners of the cape. And it is to reverse this wicked decision that Senator Scullion's private senator's bill has been brought to the chamber.

I do not profess to be a specialist in this area, so do not take it from me, let us hear what the Aboriginal leaders have to say about the effect of the Queensland Wild Rivers legislation. Marcia Langton, Profes­sor of Indigenous Studies at the University of Melbourne, described the gazettal of the Lockhart, Archer and Stewart Rivers—I hope you are listening to this, Senator Fielding—as 'a terminal threat to the eco­nomic future of the local Aboriginal people'. So please, Senator Furner, do not cond­escendingly tell us about the wildlife; let us talk about the human life, let us talk about the Aboriginal people, whom the Labor Party, with all its pious rhetoric, claims to champion, yet in reality stabs a knife through their heart with this legislation. Marcia Langton says this is a terminal threat to the economic future of the local Aboriginal people.

Even Mr Tom Calma, this government's own Aboriginal Social Justice Commiss­ioner, said he had 'serious concerns about the effect of the gazettals on the exercise and enjoyment of Indigenous people's human rights—in particular, those concerning cultural and economic develop­ment rights to their lands, waters and natural resources'. Noel Pearson said that the effect of the gazettal was 'to foreclose on the future for our people'. He said 'the state'—the state Labor government, that is—'cannot rip the future out from under Indigenous children's feet'. The Young Australian of the Year, Tania Major, a very impressive young woman with whom I shared a panel on Q&A two years ago, spent that program pleading with Anna Bligh, who was also a co-panelist that night, to understand the effect on local Aboriginal people, their livelihood and their economic future, of the Queensland wild rivers legislation. But Tania Major's pleas fell on deaf ears, just as Noel Pearson's pleas, Tom Calma's pleas, Marcia Langton's pleas and Bruce Martin's pleas have done.

Do you know what is peculiarly wicked about the Queensland Wild Rivers Act? As anybody who lives in Brisbane knows, it was the result of a backroom deal in a West End coffee shop just before the 2009 Queensland state election, which the Labor Party managed to win, managed to pull out of the fire, on the back of Greens preferences. And what happened in that deal was that the Labor Party powerbrokers in Brisbane, who are no better than the Labor Party power­brokers of Sussex Street or Carlton or any of the other unattractive Labor Party power­brokers across the country, sat down with the Greens in the inner-city suburb of West End in Brisbane and traded the future of the Cape York Aboriginal and Indigenous people for Green preferences. They made a present of the future of those people in order to appeal to the conceits and vanities of inner-city Green voters in Brisbane. It is as simple as that, and everybody in Brisbane knows it.

So please let us not have from Senator Furner and, I anticipate, from Senator McLucas, who I expect will be speaking shortly, pieties about how concerned the Labor Party is about Indigenous people when they come to this chamber to oppose a bill which will reinstate the rights which this very Labor government subscribed to an international instrument in order to secure—the right, as I quoted before from article 26 of the Declaration on the Rights of Indigenous Peoples, to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership. How can you do it, Senator McLucas? How can you, because I know that you do care about social justice? I know that you are troubled by this. I know that the unattractive goons—or to use Mr Rudd's word, 'thugsters'—who control the Queensland branch of the Labor Party are hardly friends of yours. So I know you are troubled by this. But how can you in good conscience come into this chamber and oppose a bill that would restore the traditional rights of the Indigenous people of the Cape York Peninsula.

Senator McLucas: You are a lawyer, George.

Senator BRANDIS: Yes, Senator McLucas, I am a lawyer and I am very proud to be a lawyer. It is a very timely interjection, because I thought I might conclude the last few minutes of my speech by talking about the constitutional basis of this bill. Because there is no doubt at all that Senator Scullion's bill is soundly consti­tutionally based under at least—

Senator McLucas: It is an opinion.

Senator BRANDIS: Yes, it is an opinion and it happens to be correct—and you will not find a serious lawyer who will disagree with me. Let me explain it to you, Senator McLucas. Under section 51(xxvi) of the Commonwealth Constitution, the Common­wealth parliament can make laws for:

The people of any race for whom it is deemed necessary to make special laws.

It is the so-called race power.

Senator McLucas: How long would that take to go through the High Court?

Senator BRANDIS: How would it go at the High Court? The argument that I am propounding would win without a shadow of a doubt, Senator McLucas. So while Senator Scullion's bill is supported by the race power in section 51(xxvi) it is also supported, as any piece of legislation in this parliament these days that relies on an international instrument, by the external affairs power—section 51(xxix) of the Commonwealth Constitution.

We have had this argument, Senator McLucas. Let me refer you to the Tasmanian dams case and volume 158 of the Commonwealth Law Reports, which I just happen to have with me, in which the High Court in 1983 upheld the Commonwealth Law in relation to the Gordon below Franklin Dam on the basis of the United Nations convention on world cultural and national heritage. So we have a clearly established precedent in the High Court in the Tasmanian dams case and in subsequent cases that environment legislation based on an international treaty is within the legislative competence of this parliament under the power conferred by section 51(xxix)—the external affairs power.

But this case, Senator McLucas, is even clearer than the Tasmanian dams case. It is clearer for two reasons: first of all, because the jurisprudence has moved on since 1983. In all the years since the High Court's construction, the breadth or the ambit of the external affairs power has expanded; it has not diminished. So if the Tasmanian dams case was good authority for the use of the external affairs power to support environmental legislation in 1983, then it is certainly the case in 2011 that the Common­wealth parliament has the power.

But it is even clearer in this case for a second reason, Senator McLucas—and let me finish where I began—because it was your government that acceded to the United Nations Declaration on the Rights of Indig­enous Peoples. So under the external affairs power Senator Scullion's bill is doubly supported. It is supported by the World Heritage convention, because it is a bill in relation to the protection of the environment, but it is also a bill, plainly, for the protection of the rights of the Indigenous people and it gives effect to what your government subscribed to but your Labor Party collea­gues in Queensland, in order to buy Green votes, walked away from, and that is the right in Article 26 of that international convention of indigenous peoples to:

... Have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership ...

If you believe that, you would vote for this bill, and by your conduct in opposing this bill you really show what you stand for.