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Tuesday, 12 May 2009
Page: 3525


Mr PERRETT (5:35 PM) —I too rise in support of the Native Title Amendment Bill 2009. On this occasion I will acknowledge the traditional owners of the land we are gathered on and thank them for their continuing stewardship. I also thank the member for Lyne for his contribution. He is always worth listening to. I might well take him up on the invitation to visit his electorate one day.

The bill before the House is another step in the long struggle to provide appropriate recognition of Indigenous land rights. It has been 221 years since Indigenous Australians were first dispossessed of most of their land back in 1788—dispossessed according to the power of the Crown—and it is 17 years next month, on 3 June, since the historic 1992 Mabo decision, where Chief Justice Mason’s High Court recognised a form of native title for the first time. Those historic actions commenced in the High Court way back in 1982. But 1982 is a long time ago. I was just a 16-year-old, in my last year at St George State High School. I think that back in 1982 Bob Katter might have still been a member of the Nationals in the Queensland Bjelke-Petersen government. I am not totally sure about that, but 1982 is a long time ago.

The plaintiffs in the action—Eddie Mabo, David Passi and James Rice; all Meriam people from the Murray Islands in the Torres Strait—commenced their action. How significant it was for Australia! I must digress. I am not sure of the history of the word ‘Murray’ in the name ‘Murray Islands’. It could be named after some English person; I am not sure. I have not done the research on that. But it is interesting that the Queensland word for an Aboriginal or Torres Strait Islander person is actually the Kamilaroi word ‘mari’. The Kamilaroi tribe, in my understanding, are most significant in New South Wales, where the word ‘Koori’ is more often used. There is a bit of trivia there—that a New South Wales word has been accepted by Queensland for Indigenous people. But the area that we are talking about was actually the Murray Islands in the Torres Strait, and not people who identify as Aboriginal but people who are Torres Strait Islanders—although I am sure that if you talk to some Murray Islanders they do not see themselves as Torres Strait Islanders. But I digress.

The Murray Islanders that I mentioned—Eddie Mabo, David Passi and James Rice—challenged the concept of terra nullius. I am going to recite from a book that I wrote, The Twelfth Fish, for the definition of terra nullius. At the start of this book, I quote from the Macquarie Dictionary second edition 1991 definition of ‘terra nullius’—the ‘land of no-one’. That was what the legal definition sprang from. These gentlemen, with a lot of legal support, challenged this concept of terra nullius in the courts of Queensland and then ultimately, as I said, their actions moved up to the High Court in 1982—a very long time ago.

How did the decision go in questioning this concept of terra nullius? As a great philosopher from the late 1970s stated, ‘Two out of three ain’t bad.’ In the High Court, it was better than that great philosopher from the late 1970s or perhaps early 1980s—I would have to check. In the High Court, it was six out of seven judges. That ain’t bad. The High Court said that native title exists and is therefore recognised by the common law of Australia.

How did the High Court of the time come to this conclusion? A lot of people do not realise—except for those people who have read the Mabo decision, which I imagine would not be a lot of people—that the High Court came to this conclusion: they accepted the findings of fact made by Justice Moynihan of the Supreme Court of Queensland. Unfortunately, that was not good news for the late, great Eddie Mabo, but it was obviously better news for David Passi and James Rice and their families. How did the High Court make this leap? When the Moynihan court looked at the claim at the state level—Mabo v the State of Queensland 1988—and when they looked at these facts, they actually went up to Murray Island. They got their feet wet. They went and looked at the fish traps up there. The whole court went up there and looked around, met local people, got their feet wet and really found out about the true facts as they really were. That was why the High Court was quite accepting of this evidence. But the High Court leapt from these coastal fish traps up in North Queensland and was then able to extricate from that these laws that particularly applied to Aboriginal communities. So, from these coastal fish traps, they jumped over to these Aboriginal legal concepts.

How did the High Court, as led by Chief Justice Mason, interpret this set of facts and come up with this new truth which we all accept now? How could they put aside 204 years of historical force? The book that I referred to earlier, The Twelfth Fish, is deliberately set in 1992 because the Mabo decision is a significant theme throughout the book. In this book I tried to invent a new word, and the word I used was ‘reterpreter’, which is sort of like ‘interpreter’—where you take facts and turn them into another language and gain a better understanding for yourself. But I played on that and used the word ‘reterpreter’, which—for lovers of English—is a palindrome. If you are an anagram expert you might also understand why I chose this particular word. Unfortunately, the book that I wrote did not particularly take off and not many people have read it. Certainly, if everyone that was upset about the language in it had bought it, I would be a wealthy man. But that was not the case. Instead, rather than rely on the word I attempted to use, I will turn to the introduction to this book where I quoted from someone with a little bit more style. That is TS Eliot, in his poem—not The Hollow Men, you can rest assured that I am not going to quote from that—Little Gidding. He wrote:

We shall not cease from exploration

And the end of all our exploring

Will be to arrive where we started

And know the place for the first time

He had a much better way with words, obviously.

As I said, that is why my novel, The Twelfth Fish, is set in the year 1992. For me, especially, it is one of the most significant anniversaries in Australian history, along with—as the member for Lyne said—the apology delivered by Prime Minister Kevin Rudd on 13 February last year, which was my very first day in parliament. I have written a sequel as well, and that is set around another date, 6 November 1999, but that is a story for another day for people who love the republic or who perhaps love rugby. Going back to the matter at hand, the Mabo decision had far-reaching implications which Indigenous communities, lawyers, mining companies, farmers and politicians continue to process and resolve. It has been touched on quite thoroughly by some of the earlier speakers.

But the Mabo decision shone a light on the facade that is terra nullius and the flawed process that delivered flawed—at least morally—certificates of title to every Australian landowner. I include myself in that group. Following a review of the roles of the Federal Court and the National Native Title Tribunal back in 2005, the Howard government decided to give the tribunal greater powers, including the role of mediation. Unfortunately, this has not delivered an effective or efficient mediation process. The Howard decision may have been inspired by the best intentions but, as they say, the road to hell is paved with good intentions.

Unfortunately, way too many native title cases have been bogged down in the courts. This has meant additional expenses and unnecessary delays. Since the Native Title Act began in 1993, around 1,000 claims have been resolved. That is fantastic homage to the legislative work done by Paul Keating and members of his government—and, of course, governments since then. Unfortunately, there are currently around 500 claims awaiting resolution. The average time to resolve a native title application has been 12 months where the claim is unopposed, five years and nine months for determinations by consent and seven years for determinations by litigation. I, a former English teacher, did some quick maths and worked out that that is about 2,557 days on average, and obviously a lot of those would take much longer.

While the process is lining the pockets of lawyers, traditional owners are missing out on better social and economic outcomes for their communities. I do not want to speak ill of lawyers, obviously, but these time lines and the costs for the resolution of native title claims are totally unacceptable, which is why the Rudd Labor government is moving to improve the system. This bill will give the Federal Court control over all native title claims and allow the court to manage the mediation process. It will encourage native title disputes to be resolved through negotiation rather than litigation.

I well remember sitting down with the Murris from the Woorabinda community west of Rockhampton back in 2005 when I was the native title adviser for the Hon. Stephen Robertson when he was the Minister for Natural Resources and Mines. So much more can be done when we move away from the adversarial system of legal resolution towards negotiation. Coming from the Labor Party, I have some insights into how complicated politics can be and, Deputy Speaker Thomson, coming from Victoria, I am sure you are able to suggest how complicated politics can be. In my time as a native title adviser I gained a new insight into how complicated politics could be within the Indigenous community. It certainly makes for very complicated politics when people talk about historical links with the land.

The Federal Court will not replace the tribunal as the sole mediator but will oversee the role of the tribunal. Where parties cannot reach agreement, the Federal Court can use its powers to ensure matters progress. This bill will also allow the court to rely on an agreed statement of facts between the parties as evidence for consent determination. This will provide greater flexibility and speed up the resolution of native title claims, as will the new ability for the court to make determinations that cover matters beyond native title and to recognise the broad agreements which can be negotiated under the act. That has certainly been the case in Queensland and there have been many cooperative, wonderful decisions between the mining communities and other communities, such as those represented by the member for Kennedy.

This bill will also apply the recent changes passed by this House in the Evidence Amendment Bill 2008. Where appropriate, this will make it easier for a court to hear evidence of Aboriginal and Torres Strait Islander law and customs. I welcome the changes contained in this bill. I am confident it will lead to more timely resolution of native title claims. I think the lawyers will still do all right too. Obviously, those ski trips to Aspen do not pay for themselves. Sorry, Mr Deputy Speaker, I take that back—I know there are hundreds of hard-working lawyers who have never been skiing in the United States and perhaps some who have never been skiing at all.

I recognise that this bill does not do everything and it will not create a perfect native title system. There are still some debates to be had about how we might help fund native title claimants to pursue their claims. Nevertheless, I hope that the improvements in this bill will go some way to reducing the costs through a more efficient claims process, but I also acknowledge that more can be done for a fairer native title system. I want to thank the Attorney-General, Robert McClelland, for introducing this bill into the House and thank him for his passionate and practical support for the advancement of Indigenous land rights.

Recently I made the change to an iPod. It was quite a complicated process. I started out by investing all my money in cassettes. As it turned out, that was not a wise decision. I then moved on to CDs, like so many people. But recently I have made the jump to an iPod. I have put all my CDs on there. There are about 5,000 songs. I have collected the songs from a long way back—back to 1982 when Eddie Mabo, David Passi and James Rice from the Meriam people commenced their High Court action.

My preference was always to choose the album and listen to the album, but then I found the function on the iPod where you can put playlists together. You can put all the Bruce Springsteen covers together, all the sad songs together or all the songs written by Queenslanders together. You can do whatever you want to do. I have started doing that. Obviously, it came to the point in time when I wanted to put my top 50 together. It is hard to pluck 50 songs from the 5,000 songs and put them in order and decide as a 43-year-old what my No. 1 song is.

Since I fell in love with music as a youngster my tastes have changed. Once upon a time my favourite song would have been Joy Division’s Love Will Tear Us Apart. After 17 years with the most beautiful woman in the world, to love a song like that does not resonate well with me. It is the same with Paul Kelly’s song Careless; things have changed.

I am now tossing up the top four songs to be at the top of my top 50. There is Wide Open Road by the Triffids, Walk the Line by Johnny Cash, which I had at my wedding, Head Full of Steam by the Go-betweens and this last song, This Land is Mine, which I am still particularly in love with, by Kev Carmody and Paul Kelly. Kev Carmody is a Queensland songwriter, I think, from Cairns and Paul Kelly is obviously a well-known performer from South Australia. This song is from the movie One Night the Moon. The song has contrasting voices of two men: one is an Aboriginal and one is a white settler. One says, ‘This land is mine,’ and the other one says, ‘This land is me.’ That is really the conflict that exists in all Australians that the exploration of native title is about resolving. Hopefully, that song will still be my No. 1 in 50 years time and, hopefully, so many more native title issues will have been changed in that time. I commend the bill to the House.