Senator BOURNE (6:13 PM) —First of all, I would like to acknowledge the traditional owners of the land on which Parliament House stands: the Ngunnawal people. It is easy for all of us to forget that there are traditional owners of all of Australia, including the cities—and that includes Canberra and Parliament House, where we are now. I would also like to acknowledge the presence—I do not know whether they are in the gallery at the moment but they have been throughout this debate and will continue to be—of the Wik people from Cape York Peninsula.

The last time the Senate debated the Native Title Amendment Bill I was unfortunately unable to speak on the second reading. I had that flu that was going around, and it was very distressing for me to be sitting at home listening to the radio, yelling at various people from my lounge room. Fortunately I am back here now, and I will try not to yell at various people but it is very difficult not to. Although I cannot say I am pleased that the bill is back before us, I am pleased that I can now make some small contribution to the second reading debate in the defence of the rights of indigenous Australians.

This evening I would like to concentrate on some international dimensions of the native title debate. Successive Australian governments have agreed to bind Australia to a number of international human rights standards. The universal acceptance of a set of basic guidelines about human rights behaviour is to be applauded, and of course I do applaud that. But it is a real pity that this bill appears to infringe a number of international human rights instruments to which Australia is a party. In particular, the bill appears to the Australian Democrats to contravene article 27 of one of the most basic human rights instruments—the International Covenant on Civil and Political Rights—as well as contravene the International Convention on the Elimination of All Forms of Racial Discrimination.

To understand how this is so, we need to go back to 1993 and to the events during the drafting of the Native Title Act. At that time, the indigenous negotiators agreed that the act could be deemed to be a `special measure' for the purposes of racial non-discrimination law. A `special measure' is something which advances a disadvantaged racial group's human rights even though it contains elements that can be deemed to be racially discriminatory. The indigenous negotiators agreed to those aspects of the act which discriminated against native title holders as a trade-off against the provisions which improved on the common law rights of native title holders—and I refer there, of course, to the land fund, to the non-extinguishment principle and to the absolute basic right to negotiate.

This bill that we are now debating has had no such agreement from indigenous people, but we have seen the federal government seek to rely on this in its attempts to push that legislation through. The Convention on the Elimination of All Forms of Racial Discrimination obliges Australia to outlaw racial discrimination and to provide for equality before the law in the enjoyment of human rights. That includes property rights. That convention also requires us to apply special measures only when they secure the advancement of a racial group towards the equal rights of others. In the Democrats' view, this bill fails that test.

It is really quite astounding that Senator Minchin has described this bill as beneficial to indigenous Australians. It most certainly does not advance their rights—including their property rights—as defined under that convention. Obviously, then, the government cannot possibly be relying on the `special measures' test because it just does not apply to this bill.

In fact, this bill discriminates against indigenous people in a number of ways. The most crucial is that it supports the rights of non-indigenous people over the rights of indigenous people. It takes a great deal away while giving very little back. You need look no further than the amendments to the right to negotiate, to the sunset clause, to the validation of intermediate acts and to the suppression of rights associated with primary production activities, water, fishing and reserves.

In essence, we have private property rights of indigenous people being removed for the benefit of other private leaseholders—be they pastoralists, miners or developers. Removing those rights would be bad enough if they were being removed in the public interest. But they are not being removed in the public interest; they are being removed for private interests. The removal of the right to negotiate over mining on pastoral leases would benefit private interests at the expense of native title holders. The compulsory acquisition provisions in the bill are designed to benefit other leaseholders to the detriment of native titled holders. Allowing diversification of land uses, up to the definition under the Income Tax Assessment Act, is designed solely to benefit those other than native title holders.

The second major area where the bill discriminates is its failure to provide the same protection to native title holders' property rights as is afforded to others. If we were considering what automatic rights should be afforded to pastoralists, to miners or to developers when native title holders wanted to take some action on the land over which they held rights, those rights would no doubt include some form of consent. However, if we consider the provisions of this bill relating to validation of intermediate acts, to private water and fishing rights and confirmation of past extinguishment, those rights do not apply to native title holders. When it comes to indigenous people under this bill, no such consent is required.

The sunset clause under this bill is not only discriminatory but also immoral. It is immoral to impose it on one group's property rights and not on others. In short, this bill treats native title as an inferior property right to all other property rights under Australian law—and that should never be the case.

Discrimination also occurs if there is a failure to provide equality by way of appropriately different treatment of the unique aspects of Aboriginal culture—and we see that in the ICCPR. Let me stress that this is not `special' treatment, as the government seems to think it is; rather it is appropriately different treatment. It is quite appropriate to be different in this case. It is a reality that Aboriginal culture is not white culture. We have to accept that. This bill discriminates because it does not accept that fact.

In the right to negotiate provisions, it fails to recognise the Aboriginal sense of obligation to land, whether it is in relation to its use, to its protection or to its management. The Australian Democrats not only believe the bill is discriminatory and will be seen as such under international standards but also believe many aspects of it are immoral.

It is morally wrong to: remove the property rights of one sector of society on the basis of race; impose a time limit on some people's property rights but not on others; use unfair tests that people have to pass to exercise their own property rights; render people's property rights useless by removing their ability to negotiate about the use of their land; and validate unlawful acts without either permission or compensation to those who have been disadvantaged by those illegal acts. All this is on the basis of race alone.

At the international level, United Nations committees—the Human Rights Committee and the Committee on the Elimination of Racial Discrimination—apply the relevant standards. They do this partly by considering complaints from individuals or groups who report breaches. While we know the findings of these committees are non-binding, such a finding against Australia, based on this bill becoming law, could only be extremely negative for Australia. Our standing in the international community, as we have just heard from Senator Reynolds—and she is absolutely right—in the field of human rights is already at the lowest point that I can remember. Such a finding from a United Nations committee can only diminish our standing even further.

After the furore and fallout that has arisen in our region over recent times, it is hardly in our national interests to continue either the perception or the reality that Australia is prepared to discriminate against one race over another. We cannot afford as a nation to fail to develop a better understanding between indigenous and non-indigenous Australia. Mick Dodson, the former Social Justice Commissioner, and a great Australian, wrote in the Melbourne Age last year:

Coexistence is about sharing our history and our stories, as well as our land and contributing to a shared vision of our nation.

This bill not only does not achieve that but takes us in the opposite direction. The opportunity we have as a nation to foster an understanding of Aboriginal culture is an opportunity that presents itself to any nation not just once in a decade or even 50 years. Let us not squander it.

The doctrine of terra nullius upon which our law was founded provided us with the excuse to attempt a decimation of a culture. That was many years ago. It must never be attempted again—either implicitly or explicitly. The failure to build our future on respect and on tolerance will contribute to a reality that sees Australia unable to disentangle ourselves from the racism which has disfigured our past. The discriminatory aspects of this bill must not be enacted if we are to disentangle ourselves from that past. I sincerely hope that the Senate accepts that view over the coming days.