Mr BEAZLEY (9:31 AM) —We did not need to be here today again talking about the Native Title Amendment Bill 1997 [No. 2] . We could probably have avoided much of this if this current government, when in opposition, had not taken an attitude of radical non-cooperation to the original Native Title Act. We could have avoided this if the government had been prepared to negotiate in good faith in producing the bill that we have before us. We could have avoided this if the government had been prepared to accept an outcome back in December last year which gave them 90 per cent of their bill.

The fact that, despite all these opportunities to avoid this face-off, we are here today represents just about the second worst possible outcome for this debate. The worst outcome will occur if ever we have to confront this reprehensible piece of legislation in a joint sitting; then we will truly plumb the depths of the worst possible outcomes for this process. We will then set the stopwatch and wait for the first High Court challenge, the first adverse decision and the Native Title Amendment Bill Mark III. But all that avoids the fact that there are worst possible outcomes from this government's actions happening right now, every day of the week.

Our second reading amendments cover some important themes, and today I want to go through some of those. Those themes focus—because someone has to—on the uncertainty that exists today; the uncertainty that has been created expressly by this government. I want to talk about three types of the worst possible outcomes which are happening already, happening right now, under this government's approach to native title. The first is that the government's refusal to accept the 90 per cent of its bill which passed through the Senate means that thousands of potentially invalid interests and rights granted after 1 January 1994 by state governments remain in question.

This is just one of the areas of significant compromise—significant compromise for the Labor Party and very significant compromise for indigenous groups—which the government was prepared to ignore as it took its bat and ball and went home at the end of last year after rejecting the compromise bill. The government talks about creating certainty with its native title legislation. I can imagine that the several thousand holders of these potentially invalid interests and rights do not see it that way. That is the first worst possible outcome. The situation continues for all those people today as we again go around the block with this bill. It will persist for them until they have a piece of legislation that anybody can be confident can be legally upheld.

The second one of those worst possible outcomes is that there is still no threshold test in operation for native title claims. I have said many times before that the most difficult thing with this government is to discern the balance between incompetence and malice in the things that it does, but both incompetence and malice are almost always there. This is another example. We now watch claims across the country rack up, many of which have no possible hope of success. But they serve the interests of a government that wishes to portray native title as a threat to property rights across the length and breadth of the nation.

We could be forgiven for thinking that the Prime Minister (Mr Howard) desires this so he again can hold up his map with the spreading brown stain. We know from last night in the Senate how proud he is of that map. The Prime Minister turned himself into an advertising company, apparently, a few weeks ago. He decided, `Saatchi and Saatchi is not good enough for us. DDB Needham is not good enough for us.' No, the Prime Minister must expend public funds. What did he have out there? His little map. What was the result of him putting his little map into the public domain? It was tested amongst members of various groups who were previously National-Liberal Party voters, and they decided that, on this occasion, they would vote Labor. That was their response to the little map that the Prime Minister is so inordinately proud of. He seeks to put a notion in the public mind that people experiencing no threat to their backyards, their property rights or whatever are, nevertheless, under some form of threat.

That map and that Prime Ministerial portrayal were sitting on television like the leaning tower of Pisa. The Prime Minister was desperate to show the map to Kerry O'Brien. While Kerry O'Brien was having a bit of backchat, the Prime Minister was leaning over, reaching for the map. That represents one of the most demeaning and reprehensible acts by a Prime Minister whose reputation diminishes daily, largely as a result of his own actions and inaction. That act will stay as a seminal memory for many of us in politics for a considerable period of time.

The amended act, if passed by the Senate last year, would have put in place a threshold test, and with it a major contribution to moderation and sense in this debate. Thanks to this government, we do not have it. Senator Minchin keeps telling me how terrible our amendments would be for Western Australia. What Senator Minchin does not realise is that the greatest problem in WA is the spaghetti can of claims over the goldfields, most of which were in place before June 1996, and which are not swept up in this process we gather here to debate. The bill is irrelevant to them, except to the extent that the problem there requires a fair bit of goodwill for it to be resolved. There is no goodwill around as a result of this government's legislation.

The solution to those claims resides in the goodwill of the parties and competent regional organisations more directly involved in claims management and evaluation to allow a significant reduction in the number of conflicting and overlapping claims, and claims with limited prospects of success, remaining within the tribunal system. The essence of this process is negotiation and consent rather than win-lose litigation.

But since Senator Minchin mentions WA, let me say that one of the greatest obstacles to the reasonable resolution of native title claims in my home state is the Court government. From their hysterical reaction to the Mabo decision, through their ludicrous and expensive challenge to the Native Title Act, lost 7-0 in the High Court, to the glaringly obvious fingerprints they have put over all the most obnoxious aspects of this bill, the Court government has remained a part of the problem, not a part of the solution. While screaming about the unworkability of the act, Mr Court has never assigned more than five or six officers in his Department of Minerals and Energy to deal with mining tenures and has therefore in fact himself been the material cause of the very bottlenecks he blames on the current Native Title Act.

The final worst possible outcome which people must live with every day is the increasing incidence—with the ongoing uncertainty of the government's legislative response—of claimants resorting to actions under common law, actions which will only bog native title claims further down in protracted and expensive legal argument, where only the lawyers are winners. Never let us forget that the Mabo case was a common law claim. With no mining interests, projects of national significance or other serious competing interests, it took 10 years to resolve. With no inhibitions, with nobody else's interests in it apart from the persons concerned with the claim, it took 10 years to resolve. Is that the process that we want for resolving native title claims across Australia? It is the process this government is increasingly forcing people into.

As I have said, the worst possible outcome—this much the government at least claims to understand—is ongoing uncertainty: uncertainty of title, uncertainty of rights, uncertainty of laws, and uncertainty over business and livelihoods.

I said in this place at the end of last year above the din of a government backbench whose troglodyte incomprehension is the intellectual force behind this bill we have before us that when you wish malevolence on people and you happen to be idiots you end up at the end of the day shooting your supporters in the foot. And that is precisely what the miners and pastoralists have to thank their government for. These are the people you claim to govern for in this debate, to the extent that you claim to govern for anyone. The Prime Minister said as much last year when we referred to his covenant with the miners and pastoralists. We think that wrong-headed. We think that approach ignorant, neglectful and inadequate. We think that a government must have a covenant with the Australian people. Nothing will avoid the fact that it is your view, but even if we accept that view you cannot deliver for your own people. That is the point—because the worst possible outcome of uncertainty with no end in sight is what this government is ladling out every day: every day that it refuses to negotiate, every day that it refuses to compromise, every day that it refuses finally to come down from its hobbyhorse and abstract from its political games to start governing on the matter.

We have thought long and hard about these issues on our side of the chamber. We have some experience with them. We were out of the starting blocks on grappling with the import of the Mabo decision when it happened, unlike our political opponents, who had the luxury of three years of glorious ignorance and petulant inaction until they too had actually had to come to terms with the dimensions of a solution to it.

We have thought about these issues and we took one sort of approach to them right from the start. We approached them fully apprised of their difficulty. We approached them with principles in mind, but also with flexibility. We approached them knowing that we were in new territory, that we would be likely to produce legislation which had parts of it flawed, and that there would be a requirement to revisit it. We knew, on the strength of that, that we had to put in place a process not invested with exclusive pride of ownership, that we could not stand on ceremony. We also knew that while we were not legislating in a complete vacuum we were legislating in an area with only a single High Court case for guidance on certain points of law.

Well, fools rush in where angels—should I say `others'—fear to tread. This government, in all its finery of malign ignorance, scoffs at the rule book on the issue. It has decided for us in this debate that the political path, not the policy one, is the shortest distance between two points. It has decided it can cut a magnificent political swathe through the native title debate and that all parties to the proceedings, and the parliament, the opposition and the High Court will come to heel. They have ignored the advice of just about every independent legal voice in the country, advice that tells them that this bill is legally and constitutionally unsound. Law societies in various states, the Law Reform Commission, respected conservative barristers such as Alex Shand QC, and armies of academic lawyers have pointed out aspects of the bill that will provide walk-up starts for Federal and High Court challenges.

In its inadequate notice provisions, in its capping of compensation and in its complete disregard of an expanding body of case law, this bill fails at many opportunities to provide compensation on just terms as required by the constitution. In its discriminatory approach it will destroy the beneficial character of the 1993 act that had it characterised by the High Court as a special measure, consistent with the Racial Discrimination Act. Despite the government's admission that the bill relies in part on the head of power provided by the Commonwealth's constitutional responsibility for external affairs, it proceeds to abrogate treaties such as the Convention on the Elimination of Racial Discrimination that have been lawfully ratified.

It is hard to know when you stand opposite that kind of approach—with the knowledge of the system that you have and your principles in the case and your beliefs about the political process—what to do in response to that kind of behaviour. We have had to ask ourselves what there is in our gift as an opposition to avoid ongoing uncertainty. The answer is that we have our good faith and our willingness to compromise. That willingness is not a matter of my word; it is a matter of apparent fact for anyone who cares to look at the Senate debate and the amended Native Title Amendment Bill 1997 [No. 2] passed by the Senate in December last year.

We passed the bill even though it represented the defeat of more than 70 per cent of the amendments we had moved. We passed it because we felt we could have faith that we had made the legislation workable and that it had some chance of survival in the High Court. We had at least validated the position of people who were in the possession of possibly invalid leases and we had got up amendments on the Racial Discrimination Act on the right to negotiate. Let there be no doubt that we were not happy with the amended bill but we understood the need for compromise and negotiation. We knew that there could not be a successful compromise on this issue if one side felt it owned it.

That was the bill this government rejected. Remember that we are here because of an act of rejection—not an act of rejection by the Senate of the government bill but an act of rejection by this House and this government of a bill which gave them 90 per cent of what they asked for passed through the Senate. That is the rejection we are dealing with here today. The bill we are looking at today is the same as the bill which was introduced in this place last year. That is the best indication of the amount of compromise this government has accepted on this issue—not a millimetre of compromise, not for a second.

As far as party leaders are concerned, the Prime Minister and I do share some things. One of the things we have been forced to share over the last few months is the view into the abyss of a race based election over the legislation we gather here today to debate. I feel we have both looked into that abyss, but we have seen different things. I will not pretend to speak for the Prime Minister—I do not know what is in his heart—but I know my feelings on the election we will have if the Prime Minister chooses to set it up and to call it. I know that the eyes of millions of Australians are on this parliament as we decide these issues and that the eyes of the world are on this nation. I know, too, that the eyes of future generations of Australians will be on this parliament as we debate this bill. I know that in a sense we are all on trial and will attest to the fairness, justice and equity of our society today as surely as we decide the passage of this bill.

I want to say to the Prime Minister that Labor was prepared to step back from the abyss last year when we passed the bill in its amended form. We stand prepared to step back from that abyss again, and the government knows it. We have stated repeatedly our willingness to continue to consult and negotiate with a view to refining further the legislation to produce an outcome acceptable to all, and we state it again in the amendments we will move here today. I have said before that, if an election is called on Wik, Australia will be five weeks away from a solution—a solution which I will broker as Prime Minister by calling all parties to this issue together, including my political opponents, and not leaving until we have a solution. It will be the first thing I do in government. It is what John Howard should be doing right now.

But I must say that as I picked up the Financial Review this morning I thought there just might be a crack of light there through which the Prime Minister could march to an unaccustomed statesmanship, an opportunity for the Prime Minister to stand up now and say, `Okay, we know what we've all got behind us. We know what we have to do. We set this to one side. What I will now do is call together a no-holds-barred conference between all the parties to this and arrive at a conclusion which is acceptable to all sides and that all sides can live with.' That is absolutely required by our national interest. It will be what people have been looking for in this debate, what Sir Rupert Hamer called for in yesterday's Age, which I want to read into the Hansard. He said:

If armed conflict in Iraq can be averted at the last minute by sensible negotiation, surely the Wik imbroglio calls aloud for a similar attempt at resolution.

With so many conflicting views from responsible quarters about the meaning and effects of the Wik legislation, the public is thoroughly confused. John Howard would be showing leadership if, in the name of reconciliation, he called a summit of all the parties to seek an acceptable solution.

The last thing we need is an election with racial overtones and rooted in prejudice or confusion.

Rupert Hamer and so many of his fellow Liberals are absolutely right, because, if an election is called on Wik, we can hardly begin to imagine what will become of Australia's reputation, our hard-won reputation for decency, tolerance and mutual respect. I say that not only for this generation of Australians and for the standing of this country in the international community but also for the way our children will feel about us when the history of this period is written. Our amendments will not go on this Notice Paper for our own amusement; they will be there as a sign of good faith. The rest of it happens to be up to our opponents.

I understand this about an election that is called as a result of a double dissolution based on Wik. I know that as that election proceeds we will talk about other things. We will talk about tax. We will talk about education. We will talk about health. I know, as do most of the people in this chamber, that the vast majority of Australians will make up their minds on that issue and return or defeat the government as they see fit. Not a single person outside this country will focus on that fact, not one single person. As far as they will be concerned, the outcome of this election will be determined as a result of what are perceived to be Australian attitudes on race.

The Prime Minister has guaranteed that for us. He has guaranteed the Australian people something that they have never wanted—that is, to be tested on this issue. He stands a very material chance of turning this nation into a cause: not a proselytisation of the economic gains that we can offer the rest of the world, not a proselytisation of the multiplicity of talents of this nation such as our greatness on the sporting field and our greatness in the scientific community, or the way in which we want to convey ourselves in a region we must live with forever in good economic times and bad—but the portrayal of Australia as a little nation, a backward looking nation, a nation ill at ease with itself. This is not something this parliament should welcome. This is something this parliament should step back from the brink of in confronting, and we offer it the opportunity to do so.