Senator BOLKUS (4:49 PM) —In rising to speak in this debate on the Native Title Amendment Bill 1997 [No. 2] , I start by acknowledging the Ngunnawal people, the traditional owners of the land upon which we stand. In doing so, I would like to reflect for a few moments on what this means and how critical the concept of respect is not only in this debate but also in our ongoing challenge, both as individuals and as a nation, to achieve reconciliation with indigenous Australians.

I grew up in inner Adelaide. Within the cultural mix of our community at the time were many indigenous Australians. Not only did some live in my parents' cottage, they shopped at our shop and I went to school with many of them. We are all products of our childhood environment and I learnt much from those times. I was reminded recently by some Aboriginal Australians that, at the time, my parents forsook rent and provided food free to some Aboriginal neighbours. My parents actually had trouble making ends meet but, when asked how and why they were prepared not to charge sometimes, there was a stock reply: `It's not their fault. They're human beings. They shouldn't have to suffer.'

Isn't that the issue before us today? Should not this Senate show the leadership and the generosity of spirit that the Prime Minister is not capable of exercising? Shouldn't we be saying to Australians that we at least are prepared not only to sit with indigenous Australians, as the government has done, but also to show them sufficient respect, to listen to their views and to accommodate them in a balanced and fair outcome, which the government refuses to do?

In my 17 years in this place, I have worked with indigenous Australians on many issues. They have been subjected to constant attempts at legislative thuggery. They have resisted, they have fought and they still stand ready to fight the next fight. Their strength and their courage is to be admired. But they do have their limits. Common decency demands that we treat them with respect and dignity and not as political footballs to be used and abused whenever necessary for base and offensive political purposes.

On Monday, I listened to Ngigli, one of the people locked out of Christmas Creek in the Kimberleys, at a presentation at the Australian National University. She said, in part:

Whatever they say, whatever they do to Native Title, our country, laws, history and land will always stay. Native title is our life.

Native title is more than access to land. It is more than land management. Native title also embodies custom, law and culture. It dictates how indigenous Australians run their lives. It demands respect for law, for custom, for culture and for history. It demands respect for the importance of the land.

At the core of native title is respect for each other and each other's rights. It demands that we deal with Aborigines in the way that we would deal with each other. This entails a right to be consulted and to be listened to. The right to negotiate as an equal goes to the heart of native title. As we come to the last stage of this debate, let us not forget that history will judge us on how we handle this aspect of the debate. We will be judged not on how many vested and powerful interests we bow down to but on how many powerless and dispossessed we defend.

Just over three months ago the Senate engaged in the longest debate on a single bill in its history—the Native Title Amendment Bill 1996 . In over 56 hours of debate some 700 amendments were moved, but few of those moved either by Labor or the minor parties succeeded. Indeed, at the conclusion of the Senate debate last year, the government got some 90 per cent of what it wanted. Of the 36 key issues discussed by the Senate, the government failed to get its way only in respect of four. Those amendments dealt with the threshold test, the right to negotiate, the application on the Racial Discrimination Act and the sunset clause.

Despite the fact that the bill that was returned from the Senate was far from Labor's preferred position, we accepted the Senate compromise as a gesture of our goodwill in this debate. But that goodwill that we and other non-government senators showed the government at the time was spurned by them when they set this bill aside. The Prime Minister could have pocketed the considerable concessions at the time, yet he failed to do so then and he fails to do so now.

As everyone knows, the government entered into discussions with the Labor Party, and the National Indigenous Working Group has done so for a number of weeks, to clarify some of the outstanding issues. The talks have produced some productive developments, but only with respect to the procedural aspects of the threshold test, and then only in part. More was not achieved because more simply was not on the table for discussion. The central issues in this debate were resisted by the government.

So, despite the Prime Minister's promise to Gatjil Djerrkura, despite the calls from the Aboriginal and Torres Strait Islander communities, from the Council for Aboriginal Reconciliation, from the churches, from Kim Beazley and from the Australian people, and despite the growing community movements in support of reconciliation, we have seen no real movement from the government on all the other issues, including the two issues that have always been central to this debate: the right to negotiate and the application of the Racial Discrimination Act.

Let me go to the Racial Discrimination Act. The government's position on the RDA has always been misleading and immoral. Despite consistent advice from all experts that this legislation is racially discriminatory, we have seen no genuine attempt by the government to address this legal and social failure. Despite saying that they want a non-discriminatory bill, the government has continued its support for provisions of this bill which their own Chief General Counsel, Mr Burmester, has told them are racially discriminatory.

Instead, the government rely on the current subsection 7(1) of the act, a clause which they know full well was proposed by the Western Australian Greens in 1993 with the serious intention of addressing this issue but which, as a result of the High Court's decision in Western Australia and the Commonwealth, has no effect at all. Why? Because this government and this Prime Minister know that the only way that they and the states can take away from Aboriginal and Torres Strait Islander people the rights given to them by our legal system is if they pass racially discriminatory legislation.

They do not care how they do it. They do not care that this legislation will breach the clear covenant that the Australian people made with their government in 1967, when they said they wanted to give the Commonwealth power to make laws for the benefit of Australia's indigenous peoples. They do not care that, as leaders of the world's most successful multicultural society, they have an obligation to act in a non-discriminatory way. They do not care if the rest of the world sees us as a nation prepared to discriminate on the basis of one's race. Instead, what we have seen is the Solicitor-General submitting to the High Court in the Hindmarsh Island case, on the instructions of the Attorney-General, that the races power allows the Commonwealth to pass Nuremberg or apartheid style laws. Such submissions are simply disgraceful. All we continue to see from this government is the pursuit of a grubby political agenda that they obviously believe will help them retain seats in the bush.

Let us go to the right to negotiate. That is where the right to negotiate comes into this equation. For the last few weeks now, we have seen the trial of the grubby political campaign that this government wants to run in rural and regional Australia. We have had from both the Special Minister of State and Minister Assisting the Prime Minister, Senator Minchin, and the Deputy Prime Minister, Mr Fischer, the insulting proposition that the right to negotiate is a form of racial discrimination against Australia's farming community. They make these claims despite knowing that in Western Australia v. the Commonwealth, for instance, the High Court indicated that the 1993 act, including the right to negotiate, was consistent with the Racial Discrimination Act and was not discriminatory.

They seek to insult the intelligence of the Australian people by stating that indigenous Australians should have the same rights as the pastoralists when they know full well that they are dealing with two very different types of rights created by our legal system—rights which are analogous to landlord and tenant. They do so knowing that indigenous Australians have in a sense traded in the right under common law—a right which has no time lines nor limits, a right which is a right of veto—for a controlled and contained right to negotiate.

But the right to negotiate is not just a statutory right. It is also an incidence of common law native title. It is a recognition of the traditional custom and practice which demands that indigenous Australians be con sulted about their country. To take away that right to negotiate is to deny part of the culture and identity of indigenous Australians. In its own way, it is as destructive a practice as the forceful removal of their children. It is the difference between being shuffled around on the land like cattle and being treated with respect and dignity that any human being would expect.

In respect of the threshold test, talks have been going on and there have been some productive developments. There is considerable agreement on the procedures which should surround the test. In this regard, the government has accepted the mere fact that, if one out of a number of elements of a native title claim does satisfy the test, this should not be the basis for knocking out the entire claim. This agreement on procedural matters hides the fact that, rather than compromising the substantive test, the government's new test would be much harder to satisfy than the one they originally proposed. That is something we will address later on in debate. Rather than accept the spirit of compromise that was so desperately needed in this debate, the government has deliberately made that compromise even harder to achieve on this fundamental sticking point.

In respect of the threshold test, it is important to explain why the scope of the test is important. As people will remember in the previous debate on this matter, we talked about three connections in the alternative. What the government is now seeking to do is to tie together at least two of those connections—the physical one and traditional one—to make it much harder for people to lodge and pursue claims. The government's amendments, as I say, are not only a sign that they are not genuinely interested in seeking a compromise; they are also destructive of all stakeholders involved in the process.

In terms of the ultimate symbol of the government's bad faith in this debate, let us turn to the sunset clause. One thing that we are all agreed upon in this debate is, regardless of what this act says, that native title holders will still have the right that they will be able to seek to enforce through the common law courts. The Native Title Act had never given indigenous Australians native title rights; all it ever sought to do was to help identify them and delineate the scope of those rights that already exist.

It is agreed on both sides that no matter how difficult the processes under the Native Title Act may be, they are infinitely superior to resolving these issues through the courts. The government privately admit that the sunset clause will undermine the rest of their legislation. The stupidity of this sunset clause is that after its six years are up those common law native title rights will continue to exist. They will continue to be determined, yet the mechanism designed to resolve those issues far away from the expense and delay of the common law courts will not survive.

The sunset clause, as I say, is a symbol of bad faith. It is nothing more than a cruel decision for the people in rural Australia, telling them that this threat of native title may well be over in six years. It will not be; it is an ongoing right, and this six-year sunset clause is something that the government ought to ditch in the interests of a fair compromise.

This bill continues to be a recipe for ongoing uncertainty and division. If taken to a double dissolution it will divide Australia, black against white, city against bush, for generations to come. But assuming the government wins and ultimately passes this bill through a joint sitting of the parliament, you can guarantee that it will be in the High Court within days and locked up in the High Court and Federal Court for at least a decade.

There are at least five grounds on which this bill will be constitutionally challenged and could fail constitutional challenge. There were five grounds available to indigenous Australians before today's Hindmarsh Island decision; there are still five grounds available to them now. The first one is under section 57 of the constitution. Before we even get to the substantial legal issues surrounding the substance of the bill, the government, through its cavalier approach to section 57, has guaranteed that this bill will be challenged on the basis that it has not met the requirements for a double dissolution trigger. The government could have and should have—you may shake your head, Senator Minchin—gone down the constitutionally certain route. They chose not to do so and as a result they will have to live with at least a challenge to the bill.

Let us turn to the second ground, the racist power. There are substantive arguments, which were addressed by the High Court in the Hindmarsh Island case, that this bill was unconstitutional on the basis that it is neither an appropriate nor a beneficial use of the racist power, pursuant to 51(26) of the constitution.

We note with respect to that case that two judges said that, for a law to be within the power, it needs to be beneficial; two judges did not address the issue and two judges determined that it could be either beneficial or detrimental, but only under strict supervision of the High Court and not just with respect to the criterion of manifest abuse.

The High Court at best took a middle road in the Hindmarsh Island case today. But in taking that middle road, they have signalled a big yellow flashing light of caution to the government. Four of the judges say that there are restraints on the power. At best, the government legislation's constitutionality is uncertain, for the uncontested and uncontestable view amongst the legal experts is that this bill is discriminatory, that it is inconsistent with the RDA and it is inconsistent with Australia's international legal obligations under the Convention on the Elimination of All Forms of Racial Discrimination and the International Covenant on Civil and Political Rights.

But, even assuming the bill is otherwise constitutional, the rejection of these international obligations is not without consequence. In the lead-up to the Sydney Olympics, Australia's record on issues such as human rights will be an increasingly important focus of international scrutiny. If this is a government that persists with racially discriminatory action, then all of Australia will suffer in a whole range of different ways.

The third ground is a just terms compensation ground. Even assuming the government's legislation survives the hurdles I mention, we still have grave doubts that the legislation provides just terms for the acquisition of native title, as is required by section 51(31) of the constitution. This is because the bill fails to recognise that the constitutional requirement for just terms compensation is not merely restricted to the amount of compensation ultimately paid. There needs to be timing, there needs to be procedural rights, and there needs to be an important part of notice with respect to validation regimes. The government fails this and the government has enormous problems also in terms of taking away property rights retrospectively. This would be a fourth ground of appeal.

Fifthly, the Commonwealth has the power to acquire land only for Commonwealth purposes and not for the benefit of third parties. Once again, to the extent that the Commonwealth's confirmation of extinguishment provisions go beyond the common law and pass land on to third parties, there is a chance that it will be found to be invalid.

At the start of this process the Prime Minister promised all Australians certainty. Unfortunately, all that he has delivered them in this legislation is an unholy, unbalanced, racially discriminatory, unworkable legal nightmare. We will be left fighting out these matters in the courts for decades to come. If you think that is an exaggeration, just reflect on the fact that we have been fighting these matters in the courts for the last two or three decades in any event.

All Australians will suffer as a consequence and Australia will be diminished. Not only will the relationship between black and white Australians and between the city and the bush have been destroyed but farmers will have lost their hopes of certainty, miners will have lost any chance of reasonable negotiations with native titleholders and, at the end of the day, the Australian taxpayer will be lumped with literally billions of dollars of compensation.

Through all that, because of the pigheadedness and stubbornness of our leadership, Australians and Australia as a nation will have been diminished. We will have become an international pariah, trade will suffer and Australian jobs and national wealth will suffer as well. More importantly, we will have diminished ourselves in our own eyes. In this last year thousands of Australians from all walks of life have begun to come to terms with the past injustices we have wrought on indigenous Australians in the last 200 years. In particular, we have come to appreciate and atone for the atrocities that have occurred in our lifetimes to the members of the stolen generation.

This debate is not about past history; it is about the history we are making today. I do not want my children to have to say sorry for my actions. We should not let ourselves or our children down. In respect of this, the obligation is on all of us. In respect of the Prime Minister, when it comes to the issue of race we know that he has form over a number of years.

But the problem facing him is a problem facing each one of us individually. If an election is called on this bill, history will record that it was John Winston Howard and no other who made the decision. But history will also record all those who were accomplices in this act, which would probably be the most mindlessly destructive act to the nation in the last 50 years. History will sit in judgment on each one of the senators opposite and on this side for their actions over the next few days.

As the Labor Party has already indicated publicly, we will not be moving all the amendments we did when this bill was considered last time. Our commitment to them remains, and they do represent our preferred approach to the bill. However, to facilitate debate on the bill, we will not be moving those amendments which the Senate rejected last time and which we believe, following consultation with other senators, have no reasonable prospect of success. If others move them, we will, of course, support them.

Instead, we will move in their place the second reading amendment circulated in my name. During the committee stage we will be moving all those amendments which were successful last time as well as some clarifying technical amendments and amendments to our amendments consequent upon the 95 or so amendments the government is moving.

I move:

At the end of the motion, add:

"but the Senate notes that:

(a) The High Court of Australia in its 1992 Mabo decision, found that a system of native title to land emerging from the traditions, laws and customs of indigenous Australians pre-existed the legal system that has been implemented in the time since European settlement, and further found that native title has survived despite later grants of interests in some places, and is merged within our common law;

(b) the Native Title Act 1993 was the first attempt to manage native title claims emerging from the High Court finding, and was inevitably destined to be amended in the light of practical experience and further Court decisions;

(c) in taking office in 1996, the Government accepted the responsibility of integrating the concept, expression and exercise of native title into the social and legal framework of this nation, a responsibility that was initially taken up in 1993 by the Keating Labor government;

(d) the Wik decision of the High Court in 1996 was an inevitable and desirable part of a process whereby an emerging body of case law gave better definition to a legal concept, and deserved a prudent and measured legislative response from the Government;

(e) the response of the Coalition in government mirrored its response when in opposition in 1993, in that it chose a divisive, negative and politically opportunistic approach to an issue of historic importance;

(f) the Government, in seeking to amend the 1993 Act, has been driven by a desire to appease sectional interests opposed to the concept of native title, rather than any aim of finding a workable model acceptable to all stakeholders;

(g) the Prime Minister's self-styled "Compact with the miners and pastoralists" is a betrayal of the compact with the Australian people that is intrinsic to his office;

(h) in rejecting the compromise offered by the amended bill passed by the Senate in December 1997, the Government added further dimensions of uncertainty and social division to a process that, to be successful, has always demanded government with insight, leadership and a sense of justice and equity;

(i) the Government promoted needless uncertainty and potential economic loss in rejecting the validation provisions passed by the Senate in December 1997;

(j) an ever increasing number of unsustainable multiple, overlapping and ambit native title claims continue to mount up on the Register of the National Native Title Tribunal as a result of the Government's failure to accept the workable threshold test contained in the 1997 Bill.

(k) Australia's standing in the international community continues to be compromised by the Government's approach to native title that will see the erosion of the few rights our indigenous peoples have had recognised since European settlement, in a relationship otherwise blighted by their dispossession, the destruction of their cultures and social dislocation;

(l) genuine reconciliation with our indigenous peoples will be impossible without fair and decent dealing with native title;

(m) the bill before the Senate is fundamentally unsound unless substantial amendments are made, including:

(i) amendments to ensure fair and constitutional validation, including provisions in respect of notice provisions and compensation on just terms;

(ii) the enhancement of provisions which, whilst giving validation where necessary and certainty of tenure to all parties, preserve the character of the amended Native Title Act as a special measure for the benefit of indigenous Australians;

(iii) the amendment of a multitude of provisions which detract from a fair and just balance of the rights and interests of all stakeholders and which compromise the amended Act's capacity to withstand constitutional and legal challenge;

(iv) the reinstatement of an effective right to negotiate where there is dealing in land with exclusive or coexisting native title;

(v) a clear and unambiguous provision to subject processes under, or authorised by, this Bill to the provisions of the Racial Discrimination Act 1975 ;

(vi) the removal of those provisions that seek to impair or restrict indigenous peoples' rights beyond, or in spite of, the common law;

(vii) the removal of gratuitous real or de facto extinguishment of native title;

(viii) the removal of legalistic constraints on the operation of tribunals or courts which have the effect of denying indigenous people a fair chance to pursue native title claims;

(ix) the removal of restraints on indigenous people registering native title claims that could be successfully pursued in common law;

(x) the removal of provisions that would remove processes under the Act from Commonwealth oversight and place them for management and determination in a multitude of State-controlled bodies; and

(xi) the removal of unreasonable impediments to indigenous people having access to their traditional lands; and

(n) in the event of the failure of this Government to proceed with such amendments, a future government will be confronted with an even more complex and demanding task in forming and enacting legislation to address the resulting legal chaos, social division, and economic loss.

In moving this amendment, I indicate that it is put on the table as a draft amendment. We will be discussing it with other parties in this place to see whether we can garner further support for this. I close by saying that during the committee stages of the debate we will be moving those amendments that I indicated earlier. We do not need to go through the whole exhaustive debate again, but we will stick to our principles this time. (Time expired)