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Friday, 15 June 1984
Page: 3196


Senator CHANEY (Leader of the Opposition)(8.26) —I do not get a lot of consolation from the outline of procedures that the Minister, Senator Grimes, gave as some sort of safeguard about the application of these definition sections. Like the Minister, I have had experience in government, and I know about all the papers, all the filters, and all the rest of it. I also have a rough idea of how busy all Ministers are and how difficult it is for all of them to give the sort of detailed attention to these matters that, in theory, they can be given. I simply remind the Committee of the apparent lack of attention that the strategic assessment of Australia's defence priorities got in Perth last year as a fairly good indication of the serious problems.


Senator Coleman —What has that got to do with the Bill?


Senator CHANEY —It has a lot to do with the Minister's explanation to the Committee. I am saying that it is a notorious fact that Ministers are unable to give the sort of scrutiny that Senator Grimes suggested would be given to anything that was brought forward under this legislation.

The definition sections are important, because there is some dispute between the Government and the Opposition about the scope of the Bill. There has been a denial on the part of Government senators that the Bill can be described as land rights legislation. Yet we have the Minister now raising a definition out of the land rights legislation of the Northern Territory and comparing it and saying: ' There you are; that is appropriate'. I refer the Minister to the definition of ' Aboriginal tradition' again. I ask him to direct his attention to this series of words which need to be read together to pick out the concern I am expressing:

'Aboriginal tradition' means the body of . . . beliefs of Aboriginals . . . of a particular community . . . and includes any such . . . beliefs relating to particular . . . areas . . .

I ask the Minister to consider those words.


Senator Grimes —Who are they from?


Senator CHANEY —I was reading from the definition. Because the definition includes all sorts of multiples, I was simply picking out a part of the definition which could be applied to any piece of land with which there are traditional Aboriginal associations. I refer the Minister again to the definition, and I read these words, which are words which could be applied to a particular circumstance:

'Aboriginal tradition' means the body of . . . beliefs . . . of a particular community or group of Aboriginals, and includes any such . . . beliefs relating to particular . . . areas . . .

That is part of the definition. That is, of itself, a whole definition that would be an acceptable definition of 'Aboriginal tradition'. The point that I tried to put earlier in the Committee was that if one looks at the beliefs of an Aboriginal community about their land, one can appreciate that the definition would encompass their beliefs about the totality of their land. That is my simple point. It seems to me that Aboriginal tradition, as defined, can cover the beliefs which a particular community has about its land. If that is so, a ' significant Aboriginal area' can include the whole of the land with which Aboriginals have a traditional association. In that sense, the argument is raised that this is legislation which can apply to any part of Australia for which there is a traditional Aboriginal community having an ongoing traditional association.

My query about the definition goes very much to the potential breadth of this legislation. I read the legislation as meaning that it would be open to the Minister or one of these unnamed persons who is going to give advice to the Minister under clause 10-clause 10 specifies the sort of information that has to be provided-to include the totality of land with which a particular Aboriginal group had a traditional association.

The matter is important because debate in this chamber essentially has revolved around the suggestion on the part of Government senators that senators opposite are not interested in the protection of sites of special significance. All Opposition senators have been very careful to explain that they are not opposing that. Indeed, the Australian Mining Industry Council in its submissions to both the Government and the National Aboriginal Conference has said: 'Please, we are not contesting the desirability in principle of protecting those sites. We are simply saying that what you are doing is not an appropriate way of doing this. This goes way beyond it'. It seems to me that a core problem with this Bill relates to the definition. I query the point the Minister raised. My attention was drawn to that point earlier, before the Committee debate commenced. It seems to me that a definition which fits within the land rights legislation, which is meant to cover the totality of land and which provides for subordinate legislation for the protection of sites, is not necessarily the same as a definition which fits within this legislation. This legislation relates directly to the protection of sites. There is no suggestion of subordinate legislation such as there is under the Northern Territory legislation. We established a parliamentary committee to look at the Northern Territory subordinate legislation. There was some sort of second guessing on what would happen under the umbrella of the 1976 legislation.

The short point-I have made a short point at rather greater length than perhaps that description warrants-is this: Is it not a fact that, because of these definitions, it is open to the Minister and those who advise him to regard a significant Aboriginal area as the totality of land for which there are living Aboriginals with a traditional association? I think that very fairly and squarely puts the inquiry that is in my mind. I think it fairly and squarely puts the point which is at the back of the concern of so many people that this is legislation of far too great a breadth. I ask the Minister at the table, the Minister for Social Security (Senator Grimes), not to answer me by saying that Minister Holding is too smart for that, that he would not make such a mistake. The reason I do not want that answer--


Senator Grimes —I am not going to say that.


Senator CHANEY —Let me tell a story. I will not take too much time. The story concerns a former Liberal Minister for Minerals and Energy in Western Australia, who always used to say to me when I complained about the breadth of ministerial discretions in the mining Act: 'Well, Fred, I would never pull the rug out on anyone'. Shortly before I sued the Western Australian Government on behalf of Hancock and Wright I remember one of those people saying to me: 'Do you know what the Minister said to me? He said ''Ernie, we would never pull the rug out from under you''.'. I had a funny feeling that the client was giving me a very square bit of instruction; he was probably telling me the absolute truth. I have never been too prepared to trust a Minister since. I say that with great respect because I was very fond of that particular Western Australian Minister.


Senator McIntosh —What about you?


Senator CHANEY —When I was a Minister I was prepared to say that I should not be given too many discretions either. But I make the point with great seriousness. When Minister Holding is called upon to implement the provisions of this Bill he will not be acting in an atmosphere which is academic, cold and detached; he will have people demonstrating, upset, hot and bothered, and it will be very difficult to get to the facts of the matter.


Senator Grimes —As you did.


Senator CHANEY —I understand that. That is precisely why I am concerned. It seems to me that if this legislation is drafted in a way which really puts Minister Holding or any Minister in a position where it can legitimately and in a legal sense be argued that he could properly be called upon to defend the whole of the land which has an Aboriginal group living on it with a traditional association, the Government is opening itself up to very great dangers. There is the possibility of de facto land rights legislation. Since that is not the intention of the Government, according to its spokesman, that is a matter of concern to us.

That is as much as I want to say about the definitions. The other points I want to make are separate. Rather than deal with them in globo, I would prefer to hear the Minister on the points which I have just raised.