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Wednesday, 11 March 1998
Page: 938


Mr MELHAM (10:45 AM) —At the outset, let me say there is an informal arrangement that we will speak for 15 minutes. That is why I will not be using all of my time. But it will not take the full time to demolish the arguments that the government has put forward because there are a few myths and a rewriting of history occurring in this place which need to be corrected. The other caution I point out is that one of the minority justices in the Wik case, Justice McHugh, in the unreported judgment in the Waanyi case said at page 52:

The community will quickly lose confidence in the courts of justice if a perception arises that the courts are ready to ignore the legal rights of individuals whenever intervening governments or litigants urge that public or private convenience requires such rights to be by-passed.

This debate is about this government and this Prime Minister (Mr Howard) attacking indigenous rights when the Prime Minister says he wants to bring the pendulum back to the middle. The Native Title Amendment Bill 1997 [No. 2] is not a balanced bill; it is an imbalanced bill. It is aimed at paring back the common law rights of indigenous Australians; rights that were not given by this parliament but rights that were recognised by the High Court—our highest court in the land—in Mabo and Wik. We did not give indigenous Australians anything in Mabo and Wik. The High Court recognised their common law rights which already existed. We should respect the High Court's decisions in Mabo and Wik and the principles of the Native Title Act. This government does not do that. That is why they are in danger of turning this into a lawyers' picnic.

The 1993 Native Title Act was a balanced act for all the stakeholders. That is not so with this legislation. We were confident that our act was constitutional. The purpose and intent in 1993, after some debate in the Labor Party, was not to technically suspend the Racial Discrimination Act. I was involved in that debate. I was involved in convincing my party at that time that it was not necessary, and we did not go down that course. If one looks at the preamble to the Native Title Act, it says at page 3:

The Parliament of Australia intends that the following law will take effect according to its terms and be a special law for the descendants of the original inhabitants of Australia.

The law, together with initiatives announced at the time of its introduction and others agreed on by the Parliament from time to time, is intended, for the purposes of paragraph 4 of Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination and the Racial Discrimination Act 1975, to be a special measure for the advancement and protection of Aboriginal peoples and Torres Strait Islanders, and is intended to further advance the process of reconciliation among all Australians.

When we defended the Native Title Act in the High Court, the instructions to the then Solicitor-General were that this was a special measure under the Racial Discrimination Act which relies on the external affairs power of the constitution or, as an alternative, this was a beneficial piece of legislation under the races power—beneficial on balance—when you take the act as a whole. In Western Australia v. the Commonwealth, the High Court decided that it did not have to determine whether it was a special measure because it held that it was a valid law under the races power, and that is because it was a balanced act.

We put in place a regime to protect native title, to respect the Racial Discrimination Act and to respect the High Court's decision in Mabo. On Monday, 18 October 1993, when the member for Flinders, Mr Reith, asked the then Prime Minister, Mr Keating, about what we were doing, this is what he said at page 1977:

. . . the government is now looking at a procedure where its changes actually emanate and embrace the Racial Discrimination Act rather than override it. That is an important legal and social point.

When the member for Tangney, Mr Williams, asked the Prime Minister a question on 19 October 1993, Prime Minister Keating said at page 2092:

I made it very clear yesterday that the government's legislation will emanate from one of the provisions of the Racial Discrimination Act; that is, the legislation will not override the Racial Discrimination Act, it will arise from the Racial Discrimination Act. That is the point that I made yesterday. That is where its authority is coming from.

I could not participate in the debate at that time because I was representing the parliament on a parliamentary delegation to the Middle East, but I did come back in time for the return of the amended bill from the Senate. On Wednesday, 22 December 1993, at page 4548, I said about the Racial Discrimination Act:

To Michael Finnane QC and Greg James QC who made it possible not to suspend the Racial Discrimination Act, I say thank you . . . The Racial Discrimination Act involves everybody. We live in a pluralist society. It is our bill of rights. It keeps us equal. If we suspended the Racial Discrimination Act against the Aboriginals, who next—the Chinese, the Lebanese, the Vietnamese, the Jews?

Mr Deputy Speaker, it is our bill of rights. The government is deliberately overriding the Racial Discrimination Act. That is why it will not accept the amendment by the Senate. That is why it is careful to say that it relies on the races power of the constitution, which is not yet determined and is a question currently reserved before the High Court in the Hindmarsh Island bridge case. But the government relies on weasel words. What did the Prime Minister say to me when I asked him on Monday, 6 May 1996, the following question:

My question is directed to the Prime Minister. Will the Prime Minister give a commitment to this House that the government will not seek to repeal, suspend or override the Racial Discrimination Act of 1975?

That was before the Wik judgment. The Prime Minister said:

The government has no plans to introduce any amendments to the Racial Discrimination Act.

When asked by the member for Grey, Mr Wakelin, on Tuesday, 21 May 1996, the Prime Minister had this to say at page 919:

. . . we said that we would respect the principles of the Racial Discrimination Act, and we will.

The Prime Minister, at a launch of Aboriginal Reconciliation Week on 27 May in the Great Hall, said:

. . . we said that we would honour the principles of the Racial Discrimination Act.

He repeated that in a subsequent speech to the minerals industry annual dinner in the Great Hall of Parliament House on 30 May 1996:

. . . in making those changes, we would honour the principles of the Racial Discrimination Act.

What does the coalition policy before the last election say? It has the fingerprints of the Prime Minister all over it:

In government the coalition will . . . respect the provisions of the Racial Discrimination Act . . .

This is the caveat: was it a core promise or a non-core promise? We intend to make it a core promise. Why? Because there is no native title without respect for the Racial Discrimination Act. If we override and suspend the Racial Discrimination Act then we give power to the states and territories to extinguish native title without compensation and without just terms. That is what this debate is about. And that is why the Labor Party will not walk away from the Racial Discrimination Act.

The amendment we have moved is an amendment that we then deferred to Senator Harradine in the Senate. It is an amendment that arises out of what the High Court said in Western Australia v. the Commonwealth: the clause that is currently in the act is ambiguous. What we are doing is making our intention clear. That is the commitment of the government and it can be done. You can guarantee titles. You can improve the Native Title Act by procedures, by respecting the Racial Discrimination Act. We should be sending a message not only to our fellow Australians but also to the world that discrimination is at an end in 1998. But this government will not do that. This government quite deliberately does not want to respect the Racial Discrimination Act.

Alec Shand QC had a letter published in the Australian on Tuesday, 31 December 1996 that is worth repeating. He is a senior respected QC who cannot be said to be in the Labor Party's pocket. This is what he has to say:

The Weekend Australian reported "government sources" as saying that if John Howard received legal advice that amendments to the Racial Discrimination Act, in conjunction with changes to the Native Title Act, were necessary to overcome the effect of the High Court's Wik decision, he would consider the advice "sympathetically".

Further down he says:

If the Government pursues this proposal it will be the most dastardly racial discrimination imaginable, made possible only by an undeniably racist act—the amendment of the Racial Discrimination Act.

Furthermore, this is proposed despite the emphases placed by the High Court on the rights of Aborigines and pastoralists to co-existence.

If this Howard attitude persists, Australia will permanently and appropriately be regarded by our Asian neighbours as racist and the Hanson-Howard axis as performing a powerful function in government policy.

Those are the words of Mr Alec Shand QC. We, on this side, say that we do not believe the parliament should act in a racist and discriminatory manner by overriding the Racial Discrimination Act. Firstly, it is not legally necessary to do so; but, secondly, even if you had the power you should not do it.

What did Mabo and Wik do? Mabo and Wik recognised the truth of the matter; they guaranteed that every title in this country was secure. If native title survives then it is subservient to every valid title issued. In the vast majority of cases, if it is established then it is a residual title. It is access where you have always had access. Recent Federal Court decisions in Fourmile and in the Larrakia case confirm past extinguishment.

But what the government wants to do with this legislation is to crush indigenous Australians and to continue to take from indigenous Australians. That is what the Prime Minister means when he says he wants to bring the pendulum back to the middle. It is unnecessary. We need an acceptable solution. We need a solution that will give certainty to the farmers, the pastoralists, the miners and the other stakeholders. It can be done.

This government condemns the High Court for bringing down 4-3 decisions; yet it happens all the time. Newcrest Mining had our legislation in relation to Coronation Hill overturned, in part, on a 4-3 decision. The High Court protected the property rights of the miners by a one-vote majority—without any complaint from indigenous Australians. What does this government attempt to do? Continue a battle in the Senate which might go one vote either way—and which way it goes depends on Senator Harradine. Is that acceptable? No. It is not necessary. A one-vote majority, either way, is not necessary to improve the Native Title Act for all stakeholders.

The Labor Party stand ready to join the government in improving the procedures of the Native Title Act for the benefit of all Australians and for the benefit of all stakeholders. We should be having a cross-party approach to this but we cannot. Why? It is not the Labor Party that want a Wik election, it is the government. The government think that there are votes in it. The Labor Party believe this is a principle for which we must stand and fight. We cannot walk away from it. If we walk away from this issue, we would not deserve to be seen as an alternative government. That is not because it is an election winner; it is because the time for taking is over.

The High Court has been slandered. It has been scandalised by conservative politicians in this debate—unnecessarily so. This Prime Minister, who wraps himself in the flag, the constitution and the separation of powers, has, in the last 12 months, allowed the scandalising of the High Court. Its most recent appointment is now disqualified from sitting. I make no further comment in relation to that. From his own hand, it speaks for itself.

We are heading down a very dangerous, unnecessary path. But let us make no mistake: we do not do this because we think there are votes in it. I take great offence at the suggestion that I am running a political campaign in relation to the Racial Discrimination Act. Anyone who has spoken to me in the last four to five years—both when we were in government and since I have had carriage of this case—will know my views on the Racial Discrimination Act.

It transcends politics. That has to do with not only indigenous Australians but also new Australians. There is no way that we as a parliament should intentionally or unintentionally override the Racial Discrimination Act. Go to the original Mabo case, the Western Australian case and the Wik case and you will see what this debate is all about. It is not necessary. The Prime Minister should rethink this. There is a way through this that is acceptable to all stakeholders, and I commend him to start listening. He should listen, because what he is doing will impact on all of us and will diminish all of us.