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Wednesday, 11 March 1998
Page: 966


Mr ROBERT BROWN (1:00 PM) —The reintroduction of the Native Title Amendment Bill 1997 [No. 2] today really represents an appalling stage in the sequence of legislative enactments and judicial decisions that have taken place in Australia since the referendum in 1967, in particular in relation to Aboriginal Australians, indigenous Australians, and their rights. We had the 1975 Racial Discrimination Act, the 1992 Mabo decision, the 1993 Native Title Act and the 1996 Wik decision, and we are finally brought to this.

It is a sorry day for the Australian community, and it is certainly a bad day for the rights of indigenous Australians. It is a bad day in Australia for racial harmony; it is a bad day for political morality and for fundamental justice. It is also a bad day for Australia's standing in the world; for the reputation which Australia, since it has been a nation, has been able to develop around the world and for the respect that Australia and Australians have earned from the rest of the world.

I want to emphasise one of the points which has been made so admirably by others. There is a feeling around that, as a result of the native title legislation, something was given by white Australians to Aboriginal Australians. That is not the case. Nothing has been given to Aboriginal Australians by that legislation or by the two major judicial decisions concerning Mabo and Wik. What those two judicial decisions did, of course, based on common law rights of indigenous Australians, was to recognise those rights and to assert them, to declare them and to affirm them.

In the face of that, what this legislation is attempting to do is to remove those rights, to repudiate those rights, to deny those rights and to hand those rights to others. That is what it is all about, and that is what it has been all about from the start. Whatever the outcome of this sorry, disgraceful exercise might finally be, what we need to do is to make the law certain. We need to make the law workable and we need to make the law fair and just.

No-one denies, and certainly we have not denied, that Labor's native title legislation needed to be amended. It broke new ground. Of course there were going to be ambiguities and some elements of uncertainty. There would have been the need for clarification, for streamlining and for improvement in procedures. The Labor Party in opposition has indicated, all the time, a willingness to be involved in that process. Those weaknesses needed to be identified, and some of them were. Had we remained in government, the law would have been amended in order to overcome what clearly became some of the inadequacies of it. But that gives no-one the right—as the government has used any deficiencies in that basic legislation to do—to repudiate that legislation and, in effect, to attempt to destroy the moral basis, the moral foundations, of that legislation.

There are a number of very significant differences between the coalition and Labor in relation to these questions. In 1993, when Labor was in government and we were debating the native title legislation, we well remember how the then opposition—the coalition which is now in government—removed itself completely from that process. Of course, it was then nailing on the wall an indication of its attitude to the provisions which the Labor government was seeking to pursue, based essentially on those judicial decisions which had preceded that legislation and then the Wik decision which followed it and in itself helped to clarify the general situation concerning indigenous land rights in Australia. In 1993, the coalition left the running to the minor parties.

With this legislation, the Labor opposition has attempted to remain part of the game all the way. We have indicated a willingness to negotiate, a willingness to seek to find ways through the difficulties and, if necessary, to compromise with the government and, of course, so many of those interests that the government has so exclusively attempted to represent and to pursue. There were 359 amendments that Labor moved in the Senate. Those amendments were moved in 36 critical areas, and Labor succeeded in only 10 of them.

The point has been made that in the Senate the government achieved 90 per cent of its legislation. The suggestion was made then, and has been made since, that the government should have taken that 90 per cent, extracted that from the legislation and put that through as legislation that the whole of the parliament was prepared to endorse. Had that happened, the government—and pastoral and mining interests in Australia—would have been provided with the sort of certainty that they were after. The remaining elements that could not be agreed to could then have remained a matter of legitimate concern and legitimate debate in this parliament and in the wider community.

But the government chose not to do that. The government said, `All or nothing; you give us the lot or we'll take you to a double dissolution and we'll have a race-based election in Australia.' That was the response of this government, and that is what this government has to try and excuse. I think it will have a great deal of difficulty in doing that. There would have been so much greater certainty had the government allowed those amendments that received cross-party support to proceed and to be enacted. There would now be, for example, a threshold test to avoid all of those conflicting and overlapping land claims that have been made, which again in turn have been used by the government to discredit the process which allowed the situation to prevail which allowed it to occur.

The government's actions have caused that development, and they now use it to discredit the whole process. All of those doubtful examples of leases which occurred during that uncertain period would have been validated. Quite clearly, those grazing interests who have those leases would have been given the certainty that they seek and the certainty which they sought. Who denied them that certainty? This coalition government denied them that certainty—and they need to know it and they need to remember it. Who sought to give them certainty? The Labor opposition sought to give them certainty.

The government referred as well to its covenant with pastoral and mining interests in Australia. What about the covenant that any government should honour to all of its people, to the national community? What about the covenant that this government should acknowledge and respect that exists between it and indigenous Australians, and the covenant that may have been respected had the government not sought to discredit and to misrepresent the interests of indigenous Australians and how they were seeking to assert their common law rights which were identified by the highest judicial agency in this country, the High Court?

Most of the legal community, including the Law Reform Commission itself, have said that these amendments that the government is pursuing are legally and constitutionally flawed. If the legislation were to be passed, either now or by following a race-based double dissolution election with a joint sitting of the two houses of parliament, there is no question that there would be a myriad of appeals. There would be continuing litigation—as there should be—as those people representing indigenous Australians have said so often. But, when the negotiations were under way for the Native Title Bill—which became the Native Title Act under the previous Labor government—Aboriginal Australians made concessions, participated in the negotiation and gave ground. In return for that, they were given certain undertakings. I know they were given undertakings by a Labor government, but they were given undertakings by the national Australian government, and those undertakings should have been honoured, even though the party complexion of the national government changed.

In good faith, Aboriginal Australians made those concessions and gave a lot away. More recently they have said, `For God's sake, how much more do you want from us?' There are serious breaches concerning questions of just compensation, illegal property confiscation and discrimination. It is an appalling effort on the part of this government to extract from a significant proportion of the national community any right to be protected by legislation which has been enacted by this parliament, the Racial Discrimination Act, and to say, `Well, yes, that's all right, but you're black. You're black, so this doesn't relate to you. You're black.'


Mr Melham —It's a disgrace.


Mr ROBERT BROWN —It is absolutely disgraceful. And I want to congratulate, too, the member for Banks for his conduct of this issue. The member for Banks earlier today said that those people who know his record are not people who would subscribe to that grubby accusation that he was seeking to secure some sort of personal political advantage out of this. He knows that that is not the case, and the people who have made that grubby accusation against him should hang their heads in shame. He has been an honourable and honest person, a man of integrity, who has pursued this admirably, with all of the misrepresentation and vile abuse which has often been directed against him.

The appeals, the uncertainty, the delays which will follow this legislation will represent appeals, uncertainty and delays having been invited by this government. Who will lose out—apart from indigenous Australians who have lost out now for 200 years? The other people who will lose out are those people that this coalition government says it has a covenant with. The pastoralists and the miners themselves will miss out. Why they should continue to give sustenance to this government, which has so grievously offended their interests, I simply cannot understand.

I know there are many pastoralists and miners who are more enlightened, who do understand what this is all about. The miners, for example, have said, `Don't visit this on us; we have been negotiating with Aboriginals successfully for decades.' Those pastoralists who have lived with indigenous Australians and recognise their rights to access their indigenous lands, their hunting grounds, their fishing areas and their sacred sites are the people who know the direction that this could have taken. We could all have pursued that direction with honour.

There are basic issues which have got to be respected and protected. There is the right of Aboriginal Australians to negotiate. There is the need for continuity of native title claim rights so that we do not say to them, `Well, you'd better get in and make your claims now because, after six years, it's ended.' We draw the line, according to this coalition, at the end of six years. There is the right for them to access their traditional lands, including those lands that they have been locked out of by less enlightened land users. There is the need for them to be protected against discrimination which is based on race.

There must be a commitment to the native title rights of indigenous Australians and an honourable, just accommodation of the rights of others. No-one denies that, and certainly the Labor opposition does not deny that. There needs to be a sensible, just and honourable accommodation of the rights of other land users.

I conclude with a couple of points which have already been made, and made so well, by my colleagues—those people with whom I feel so comfortable. We will not abandon our struggle for decency, fairness, integrity, goodwill and good faith. We have been prepared to negotiate. We have been prepared to seek an honourable accommodation based on principles and justice. The coalition government should join us in this honourable endeavour. If it fails to do so, it will have abandoned forever any claim to honour in this area.


Mr DEPUTY SPEAKER (Mr Quick) —I remind honourable members that it is inappropriate to walk between the Speaker and the person who is speaking.