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Thursday, 19 March 2009
Page: 3248


Mr McCLELLAND (Attorney-General) (11:00 AM) —I move:

That this bill be now read a second time.

The Native Title Amendment Bill 2009 will make amendments to the Native Title Act 1993 that will contribute to broader, more flexible and quicker negotiated settlements of native title claims. These changes will result in better outcomes for participants in the native title system.

The Rudd Labor government is committed to a new partnership with the Indigenous community and closing the gap between Indigenous and non-Indigenous Australians. Native title has an important role to play in this new partnership. A native title system which delivers real outcomes in a timely and efficient way can provide Indigenous people with an important avenue of economic development.

The government’s key objective for the native title system is to resolve land use and ownership issues through negotiation, where possible, rather than through litigation.

This objective has been a central plank of the Native Title Act since the Keating Labor government introduced it in 1994. The preamble to the act, in fact, makes it clear that recognition of native title rights should occur where possible by agreement and with due regard to the unique character of those rights.

Regrettably, the admirable intention of the act has not been realised. For over 15 years, quite literally, millions of dollars have been wasted on unproductive and unnecessary litigation. This is totally unacceptable given the desperate circumstances of those we are trying to benefit. An opportunity for reconciliation has all too often become an instrument of division. On current estimates, it may take another 30 years to resolve all current native title claims. It is a tragedy to see people dying before their peoples’ claims are resolved. Australia’s Indigenous people deserve better, and all participants in the system should strive to achieve that.

The key amendments in this bill support the government’s objective of achieving more negotiated native title outcomes in a more timely, effective and efficient fashion. They give the Federal Court a central role in managing all native title claims, including deciding who mediates a claim. The government is confident that the court has the necessary skills to actively manage native title claims in a way which will lead to resolution of claims in the shortest possible time frames.

In recent years, the court has achieved strong results in mediating native title matters. These amendments will draw on the court’s significant alternative dispute resolution experience to achieve more negotiated outcomes.

Having one body actively control the direction of each case with the assistance of case management powers means opportunities for resolution can be more easily identified. Parties that are behaving with less than good faith can also be identified and more forcefully pulled into line. Where parties are deadlocked or unwilling to see common ground, the court can bring a discipline and focus on issues through the use of its case management powers to ensure that matters do not languish and, of course, reports that a party is not participating with appropriate good faith may well have potential consequences for their ongoing entitlement to funding.

This change is in line with consistent stakeholder feedback. It is also in line with the government’s position in opposition.

Other amendments contained in the bill aim to facilitate the faster resolution of negotiated settlements. Importantly, outcomes can extend beyond the bare recognition of legal rights. They can include sustainable benefits that deliver improved economic and social outcomes for generations of traditional owners.

To assist in facilitating broader agreements like these, the bill will enable the court to make consent orders concerning matters beyond native title.

The bill also includes specific provisions that confirm the court has discretion to rely on an agreed statement of facts between the parties in making a consent determination. This will be possible where the parties include at a minimum the native title claim group and the main government party. This is intended to allow for greater efficiency in the native title process, particularly where it is clear that there is no disagreement between the key parties about the facts. There will be a time limit imposed on those who would seek to dispute the agreed statement of facts but, again, we would expect all litigants to conduct themselves responsibly and anyone who files a frivolous objection to an agreed statement of facts may of course face potential cost consequences downstream under the normal operation of the rules of the court.

The government recently introduced amendments to the Evidence Act 1995 that, among other things, will make it easier for a court to hear evidence of Aboriginal and Torres Strait Islander law and customs, where appropriate. Of particular relevance to native title matters are amendments to the hearsay and opinion rules, and to the rules relating to narrative evidence. This bill introduces amendments that will allow the recent changes contained in the Evidence Amendment Act 2008 to apply to native title proceedings, which commenced before these amendments came into force. This will ensure that native title claimants receive the fullest possible benefit from these new laws.

This bill also contains a number of amendments to part 11 of the Native Title Act, which deals with representative bodies. One of the aims of these measures is to streamline those parts of the act dealing with the recognition processes for native title representative bodies. The bill’s provisions will allow for a very simple application process for the rerecognition of current representative bodies, saving significant time, paperwork and costs.

At the moment, the act deals with extension, variation and reduction of areas as three separate processes, which essentially have the same elements. The bill amalgamates these into one straightforward variation process but at the same time maintains the individual and public notification processes, and makes provision for extensions of time for representative bodies to make submissions if that is required.

The provisions in the bill relating to the minister’s consideration of whether a body is satisfactorily performing its functions will align with those provisions in the act which set out how a representative body is to perform those functions.

The bill also removes transitional provisions relating to the recognition process for representative bodies which are no longer required.

In addition to the measures in this bill, the government is considering a range of options to make our courts more flexible and improve access to the civil justice system for all Australians. For example, the government recently introduced legislation to allow the court to refer questions arising in a proceeding to an appropriately qualified person for inquiry and report. The ability to refer questions for expert assistance should lead to faster resolution of native title litigation, as contested matters such as claim overlaps and complex issues such as the existence and extent of native title rights and interests can be referred to experts for inquiry and report, which will hopefully reduce the areas of disputation between the parties.

The amendments in this bill will help to encourage a broader and more flexible approach to the resolution of native title. Importantly, they can help us move away from the traditional adversarial approach which, as we know, has proved both costly and slow. No-one but the lawyers benefit from costly and time-consuming litigation, and all too often we miss extraordinary opportunities that resolution of these matters would have provided. At the end of the day, I think good and principled lawyers involved in native title litigation will welcome these changes, because these changes are likely to facilitate more, broader and more relevant agreements in a much shorter period of time with considerably less expense.

The government has consulted widely in relation to these amendments and there is considerable support for the changes among the various participants in the native title system.

Native title is about more than just delivering symbolic recognition. Native title is an important opportunity to create sustainable, long-term outcomes for Indigenous Australians. The effect of the amendments contained in this bill, combined with a dedication to behavioural change by all participants in the system in the interests of those that the system is intended to benefit, will improve both the operation of the system and the outcomes we can achieve under it.

Can I recognise the fact that the shadow minister for justice and customs has paid us the courtesy of being in the House during the presentation of this bill. I extend my appreciation to her for that. I commend the bill to the House.

Debate (on motion by Mr Randall) adjourned.