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Tuesday, 10 May 1994
Page: 541


Senator CAMPBELL (8.25 p.m.) —When I perused the document list, I did notice the matter. As the Senate would be aware, Senator Ellison and I have been concerned about this issue, as I know Senator McKiernan has been. When I saw the determination appear on the document list, I asked an attendant to get me a copy of the document. It was no surprise to me that it related to the Broome crocodile farm.

  I do not want to reiterate what Senator Ellison has said about the background to this case. I think that has already been canvassed in a previous debate in the chamber. But there are a couple of important matters that need to be raised. The first relates to the process by which this determination by the Minister for Aboriginal and Torres Strait Islander Affairs (Mr Tickner) was made. The second relates to the longer term consequences, which Senator Ellison has referred to in part.

  I wish to deal particularly with subsections 42(2) and (4) of the Native Title Act. Under the Native Title Bill that was passed through this chamber in the dying days of December last year, we have a very similar provision whereby the minister can intervene and overrule all of the decisions of the courts of Australia and also of the Native Title Tribunal which is established under the Native Title Act.

  I refer, firstly, to the timing of Malcolm Douglas's announcement of the closure of the crocodile farm. For those who are not aware of it, for a number of years Malcolm Douglas has had a farm located at Broome just a few hundred yards from the Cable Beach Resort in a very good tourist area. Although it is virtually a tourist farm, it is a smaller operation where he has been propagating crocodiles. He makes all of his revenue from the tourist trade which is attracted there.

  The crocodile farm is a very important tourist development for Broome. Broome has some classic features: it has its architecture, the magnificent Cable Beach, the cinema, and a range of activities. It also has a lot of activities related to the Aboriginal culture in the area—the pearl farming and so forth. But the crocodile farm is a unique and interesting attraction, which I also had the pleasure of visiting, only a day before the closure took place.

  I discussed this matter with Malcolm Douglas on a number of occasions leading up to my recent trip to Broome. Just to inform Senator McKiernan and the Senate, the problem that Malcolm Douglas had was the uncertainty surrounding the title to the land he had obtained where he was hoping to establish the commercial operation. It is at some distance from the crocodile farm itself—it is about a 15-minute drive across to Roebuck Bay—and the whole operation relied on propagating thousands of crocodile eggs. The space that he had available at his Cable Beach development was just not enough to allow these crocodiles to be farmed. It is a fairly risky business. Pretty secure fences and good ponds are needed.

  The management of a crocodile farm is something that astounds me. The gentleman who showed me through the development at the Broome crocodile farm at Cable Beach amazed me when he told me that the way they get the crocodile eggs out of the nests is to go in there with a long prod. Of course, the mother of the average of 42 crocodile eggs sitting in a nest at any one time is extremely protective. I would not recommend it to any senator to approach a crocodile nest with a nesting female crocodile on it and try to take the crocodiles out of the nest. It is a very hazardous operation. Apparently, that is what they do: these very skilled and brave people go in there with a long prod, try to get the eggs out of the crocodile's nest and then stick them into the hatchery.

  So I guess that would be enough to discourage a lot of people from seeking employment on a crocodile farm. The problem is that the whole long-term operation of the crocodile farm as a tourist attraction and as an undertaking for creating skins and meat for export depends on space.

  That is all fairly fascinating but there is an important consideration not only for Malcolm Douglas's development in Broome but also for all developments anywhere in Australia.  I am reminded that people in Victoria often do not think of the consequences of native title because they do not think there is any native title in Victoria. I remember the contribution made by Senator Troeth from Victoria—who is in the chamber tonight—during the first debate about the crocodile farm. She revealed, for the first time in Australia, that the Victorian government's titles records show that 34 per cent—and Senator Troeth will correct me if I am wrong—of Victoria is available for claim. So Victorians should be very concerned about the native title issue as well. Native title will be an issue in Victoria because 34 per cent of the land in Victoria is available for claim.

  But certainty of title is the crucial issue that we are addressing here tonight. I remind honourable senators that Mr Douglas was given title over the land, as Senator Ellison explained, and was forced no less than three times in the Supreme Court of Western Australia to defend his rights to develop that title. On each occasion the Supreme Court took into consideration a range of views. It took into consideration the views of those who contested an area containing an Aboriginal initiation trail. Basically, a group of Aboriginals have walked across this 40-acre patch of land well described in the records of the Supreme Court and recognised by Malcolm Douglas. There have been a number of investigations by experts from the Western Australia museum—and I point out to Senator McKiernan that they certainly could not be described as lackeys of the WA government. Following an investigation over seven years, these experts in their field agreed with the Aboriginal people on where this initiation trail ran—that is, at the back of the block, away from the Great Northern Highway running up to Derby.

  Mr Douglas excised an enormous tract of land off the back of the 40 acres in total respect of that initiation trail. Taking that into account, the Supreme Court said that it recognised the existence of the initiation track. However, it also said it was fair that development should go ahead near the highway. I remind honourable senators that the Great Northern Highway between Broome and Derby is a major road going up to places like Karratha and Kununurra. Massive road trains run up and down it virtually every half an hour every single day. Of course, that means there is an enormous amount of disruption to that area. The relative disruption to the initiation track caused by a few ponds being placed near that road with a few crocodiles lazing around in the sun would not be anything like the disruption that could possibly be caused by traffic. I would not seek to judge that because I am not competent to judge the importance of Aboriginal culture and the importance of that initiation trail to those who use it.

  However, the Supreme Court made a judgment quite recently that the development should proceed. Effectively, we are talking about excavating some very shallow ponds in a mudflat type country, putting in some cyclone wire fences and putting a couple of small shed-like buildings in place to provide hatcheries and so forth for the crocodiles—a very low impact development compared with putting a major north-south highway through and allowing road trains to run up and down it.

  The crucial issue is certainty of title. Turning to the gazettal notice tabled by the clerk today, we note that in schedule 2 the prohibited acts as prescribed by the Minister for Aboriginal and Torres Strait Islander Affairs (Mr Tickner) are:

1. Bulldozing, grading, drilling or excavating, or any other act that will, or is likely to injure or desecrate the area or part of the area described in Schedule 1.

2. The deliberate killing, cutting down, damaging or removing any vegetation within the area—

Having been there recently, I have to say to the Senate that there is virtually no vegetation in the area. It is a mudflat. There are a few trees along the road, but I suspect that a lot of those trees blew in from passing trucks and have propagated themselves. Certainly, they are not part of the natural vegetation. It really is a mudflat-type situation.

  The important issue here is that Malcolm Douglas has not been told he will have his land compulsorily resumed or have some compensation paid because he is not allowed to develop. He is left with this piece of land and with his liabilities in relation to this land. However, he has been told by a federal minister that for the next five years he is not allowed to do anything with the land—not a thing. I presume that he would have to pay council rates on the land and land taxes. If there were any capital gains, he would probably have to pay capital gains tax to the Commonwealth revenue if he disposed of the land. The land is not being resumed. All we have is a declaration from the federal minister that Mr Douglas, or anyone else, is not allowed to bulldoze the land or remove any vegetation.

  The important part of this is that in Australia, or in any country, if we do not have certainty of title or private property rights protected, then development, which in the end gives hope for jobs for all Australians, will not take place. We cannot hope to increase the number of jobs in Australia unless there is private investment. I think everyone on both sides of the parliament recognises that if we do not have investment—be it public or private—we will not have an increase in the number of real jobs. Here we have a man who has made a significant investment in time and money in a good development project, who has fought through the processes of the law in Western Australia right up to the Supreme Court, and who has won on each occasion. Having done that, he has had this notice placed upon him by Mr Tickner.

  Something that angers me more than that is that effectively a one-man tribunal went to Broome to advise the minister. Fred Chaney certainly has experience in Aboriginal affairs, has a deep and active interest in Aboriginal affairs and has an enormous affinity with the Aboriginal people. However, Mr Chaney has gone there and mediated. The parliament does not know whom he has mediated with or spoken with. I am sure that the minister does, but we are not sure whom he spoke to, what discussions took place or whether or not those discussions were recorded. We are none the wiser. He has gone up there as a one-man tribunal and effectively—even though it was not Fred who did it—taken evidence without a record that we know of and without representation, as far as we know. We are not sure what rules of evidence he used, but he has made a decision which has gone to the minister.

  The minister has effectively acted on the advice of a one-man tribunal to overrule the Supreme Court of Western Australia, which made the decisions on three occasions—not only the Supreme Court of Western Australia but also all of the other bodies under the former Labor government which approved this development. So that undermines certainty of title in the eyes of all in the north of that great state of Western Australia.

  I move on to something that is even more important in the longer term. Section 42, subsections (2) to (4), of the Native Title Act, which we passed here last year and which was proclaimed on about 31 December or 1 January, refers to the tribunal processes that have to be gone through to achieve a result—a recommendation that a development either go ahead or not, or that native title be granted or not—that complex native title tribunal process that we debated for something like 58 hours last December. We are advised that that process will take between 12 or 14 months, if there are no hiccups.

  If people want to develop or if they are native title claimants, they go to the tribunal. They then go through all of the processes and all of the determinations of the tribunal, which processes take between 12 and 14 months. At the end of that entire process, which the Senate ultimately agreed was fair only five months ago, section 42 contains an absolute, undisputed power for the federal minister to intervene and overrule the decision of the tribunal.

  Although the determination that we are debating tonight is different—it is under the Heritage Act—the power is very similar, if not worse, under the Native Title Act. For example, if a mining company were successful in the tribunal process and were allowed to go ahead with its development of a mine, of a tourist operation or whatever, not even the aggrieved Aboriginal group—the native title party, as it is called under the Native Title Act—but some other Aboriginal group not even a party to the tribunal process can go to the federal minister and put its case to the minister, and the minister can overrule the decision of the tribunal.

  This is very much in parallel with what has taken place under the section 10 determination which we are debating tonight in relation to the Broome crocodile farm. We can go through all the processes under the Native Title Act, but an aggrieved party can go to the minister and the minister has a two month period whereby he can veto the decision of the native title tribunal. That is a totally unfettered power. So, whether it is an Aboriginal group, a developer or any other group that is disaffected by the decision of the tribunal it makes little difference. Under the Native Title Act it is effectively the person or group of people who have the best leverage over the minister or the government of the day who will have ultimate power. Regardless of the 12 or 14 month process of going through the native title tribunal and associated procedures, the minister will make the ultimate decision. This indicates the importance of what Mr Tickner and his so-called mediator, Mr Chaney, have done in the case of the Broome crocodile farm.

  I will close with one other reflection on the sad and disgraceful process that took place in relation to the Broome crocodile farm. When I spoke to Malcolm Douglas a couple of weeks before the decision was made I told him that I was going to Broome; I wanted to have a look around; I wanted to get a feel for the issue on the ground; I wanted to understand the layout of the farm and talk to the local community; and, having been there, I wanted to raise some issues publicly. Mr Douglas informed me that, in the interests of mediation, Mr Chaney—I will be corrected if I am wrong—requested that there be no comment made to the media. In effect, there was a sort of formal media ban on discussion of issues relating to the crocodile farm.

  I have not met Malcolm Douglas, but I have spoken to him on the phone on a number of occasions. I have found him to be an ultimately fair man in the dealings I have had with him. He is a very reasonable man; a man who has very good reason to be angry about what has happened to him. He decided to respect Mr Chaney's wishes that there be no discussion in the media about this issue.

  It may have been Mr Tickner's idea, but Mr Chaney certainly was the messenger on behalf of Mr Tickner. The very sad thing is that this is a crucial issue in Australia, and a vitally crucial issue in the town of Broome. It is not a big town, and people should have had the right to discuss this matter. Indeed, the public of Australia should have had the right to discuss the sort of things we are talking about tonight. The fact that some sort of mediation process taking place is no reason why the public should not have a right to discuss this matter. Discussion was curtailed by a sort of gentleman's agreement, and that was imposed by either Mr Tickner, Mr Chaney or both.

  I am quite angry about that. In the last few months in Perth and in the rest of Australia the trial of Laurie Connell has been discussed day and night. How one can possibly say that it is OK to discuss Laurie Connell's trial, but not to discuss the important national issues associated with the banning of development of a piece of private property—a ban imposed by a federal minister who had no previous jurisdiction over land management—is beyond me. In a democracy it is a disgrace for anyone, either at the request of the minister or off his own bat—and I refer to Mr Chaney if he made that decision himself—to suggest that there should be some ban on discussing the very important issues that are encapsulated in the decision to ban development of the Broome crocodile farm. It is a travesty of democracy and a travesty of people's rights to discuss these most important crucial issues.

  We are discussing a crucial federal-state relations issue. We now have a junior minister in the federal government being able to ban development on a piece of land in Western Australia on the advice of an unelected mediator. It is a disgraceful decision. It is a disgrace that the federation has come to the point where we have this maniacal power of a centralist federal Labor government being able to overrule all of the due processes taking place in Western Australia. To then ban public discussion and media comment on the Broome crocodile farm is a further travesty of our democracy.

  I hope that this Labor government will regret the massive centralisation of power that has occurred in the last 10 years and will live to regret the massive centralisation of power included in the provisions of the heritage act, which we are dealing with tonight, and of course the unconstitutional, unworkable, impractical Native Title Act, which we passed through this parliament in December last year.

  Question resolved in the affirmative.