Senator MINCHIN (Special Minister of State;Minister Assisting the Prime Minister) (9:36 AM) —I begin by thanking members of the Senate who have participated in this debate. In particular, I thank all coalition senators who have not participated in this debate.

Senator West —What about those of us on this side?

Senator MINCHIN —There were many coalition senators very keen to express their views on this issue and to put the point of view as members and representatives of their states, particularly my Western Australian colleagues who have about 82 per cent of their state under claim. But, in the interests of facilitating debate on this matter and getting to the committee stage early, our colleagues agreed that there would be only Senator Boswell and me speaking from our side. I also note the comments from the other side and appreciate the cooperation of the opposition in facilitating the second reading debate.

It is now almost six years since the High Court's Mabo decision, but native title remains a difficult issue for Australians. It is a common law property right based on the traditional laws and customs of Aboriginal people and Torres Strait Islanders. It is complex, involving the interaction of a common law right, whose actual content, location and holders are still generally unknown, with Australia's statutory land law and management systems. It also evokes considerable passion. Native title is clearly an issue which requires of this parliament an approach based on fairness, balance and certainty. The government believes that this bill is a fair, balanced, equitable and practical response to the issues which have emerged since 1993.

The debate has progressed considerably since the 10-point plan was formulated now almost 12 months ago. It is now generally conceded that there are substantial deficiencies in the current act—principally that the current act was not designed to deal with native title which coexists with other rights and interests on the same land. Four years experience has shown us that some procedures in the current act are constitutionally questionable and that others work inappropriately and inefficiently, if at all. Four years after the act came into effect, there are still only two determinations of native title on the Australian mainland. The Native Title Act is not working for the benefit of Aboriginal people, and it must be fixed now.

It is also now more widely conceded that the Native Title Amendment Bill 1997 [No. 2] does not override or overturn the decisions of the High Court in Mabo and Wik. The government has always rejected these suggestions and the recent Larrakia decision of the Federal Court supports the government's position. The act, as amended by the bill, will recognise and protect native title in Australia, including coexisting native title on pastoral lease land. But the bill provides, as the court held in Wik, that the lessee's rights do prevail.

There is also greater recognition that ongoing uncertainty about native title is damaging our social and economic life. The situation should be resolved by clear, precise legisla tion. This bill provides the way forward. It builds on the common law but adds a much greater level of certainty and predictability for native title holders, pastoralists, miners and governments.

The opposition voted for the bill as amended by the Senate last year and has indicated that it thought that outcome an acceptable one. If this continues to be its position, then many of the issues which were so hotly debated in this chamber at the end of 1997 need not be revisited. Over 900 amendments were proposed in the Senate debate last time this bill was considered and 217 were passed by the Senate. The bill now before the Senate incorporates 107 of these and, on fair and objective considerations, these amendments represent genuine improvement to the bill.

Over recent weeks, the government has invested significant efforts in talking to various parties in an attempt to reduce the remaining areas of disagreement as much as possible. We have done so in the hope that this time consideration can be much more focused and, hopefully, more productive. The government will be moving amendments reflecting the outcome of those discussions, in many cases to clarify the intention and operation of the bill's provisions, and to promote a sensible, workable outcome because, whatever emerges from this chamber, it should mean solutions, not more problems.

There are four principal areas of disagreement between the government and the Senate: the registration test, the right to negotiate, the Racial Discrimination Act and the sunset clause. It is essential that the Native Title Act contain a registration test of sufficient rigour to ensure that only bona fide, legitimate claims are registered and have access to the right to negotiate process.

Multiple, overlapping, competing claims covering vast areas of Australia, many claiming exclusive possession where there are other interests in the land, are dividing Aboriginal communities and causing racial tension in many parts of Australia. We cannot accept the Senate's watering down of the test, but we have proposed amendments which clarify its operation in a way that should be acceptable to the Senate.

The bill maintains the right to negotiate for mining and some compulsory acquisitions in areas where native title may be a high level right approaching ownership of the land; that is, our bill maintains the right to negotiate on some 39 per cent of Australia. But the right to negotiate is operating as a significant impediment to development. To apply this complex, legalistic, drawn-out process on up to 79 per cent of Australia for all exploration and mining, as suggested by some of our opponents, will have potentially disastrous social and economic consequences. The government does not believe that the full right to negotiate is appropriate or fair where native title can only consist of much more limited rights and, in particular, where native title can only be a coexisting right. In such cases, state and territory governments should be able to put in place alternative processes which provide native title holders with the same procedural rights as other title holders.

Our opponents are deliberately creating the impression that if native title holders do not have the full right to negotiate then under the government's bill they get nothing and their native title rights are rendered useless. That, of course, is completely false. The proposal that the right to negotiate not apply on pastoral lease land and in towns and cities has no effect on the ability of native title holders to claim their native title rights in relation to these areas, and to exercise their rights to the fullest extent possible.

The proposed application of the right to negotiate will simply mean that, for future economic development on that land, native title holders will have exactly the same procedural rights as the pastoral lessee with whom they share the land, or a freeholder; that is, native title holders would have the same procedural rights as others and often the same rights as those who hold the highest form of interest in land known to the common law—freehold. In the government's view, this is a just and truly non-discriminatory position.

The bill will introduce a much greater level of certainty and predictability to native title issues. We believe that this will deliver greater benefits to native title holders and other interests. The government is not pre pared to jeopardise these benefits by incorporating amendments which are clearly inappropriate, uncertain or ambiguous. This is why we cannot accept the Senate's amendment subjecting the Native Title Act to the Racial Discrimination Act.

The government is not neglecting its national and international obligations to prevent racial discrimination, including through the Native Title Act. But the provision passed by the Senate last year is ambiguous and uncertain, and its effects are unclear. Further, the non-government parties do not appear to even agree on what the Senate amendment actually means. On one view, it is simply an interpretive provision. If this is the intention, then there is no reason to amend the current provisions regarding the Racial Discrimination Act. On another view, the amendment may allow actions to be attacked in court, notwithstanding complete compliance with the Native Title Act. No responsible government could accept this risk. It was not acceptable to the Labor government in 1993 and it remains unacceptable now. The Senate has an obligation to make clear, precise laws, especially in this area where certainty and predictability are so much needed.

Finally, the government cannot accept the Senate's removal of the sunset clause. In the four years since the Native Title Act came into operation, there have been over 700 claims lodged, covering over 50 per cent of Australia. The government—and I believe the people of Australia—regard it as eminently reasonable and fair to propose that any further claims made under the Native Title Act should be lodged within the next six years.

All the government is saying is that native title claimants who believe they have a reasonable claim should lodge it within the next six years if they wish to take advantage of the benefits of the Native Title Act. Once registered, the claim will remain on the register until there is a final determination. This is an eminently fair and reasonable proposal, particularly given that there is no sunset applying to ordinary common law claims.

Given opposition remarks on this issue, I would like to specifically address the matter of the requirements of the constitution's section 57. If the Senate fails to pass this bill—or passes it with amendments to which the House of Representatives will not agree—then the bill will comply with the requirements of section 57, which is available to resolve disagreements between the houses. The requirements of section 57 are clear and precise. These requirements have been met.

The original bill was passed by the House in 1997. The Senate made significant amendments when it considered it last year. The House of Representatives stated in the clearest possible terms on 6 December 1997 that it disagreed with many of those amendments. Three months elapsed since the House indicated that disagreement and laid the bill aside. The bill was then reintroduced into the House. It was in the form of the original proposed law, with some of the amendments made by the Senate in 1997, as clearly permitted by section 57. It has passed the House of Representatives unamended. It is now before us.

The government does not seek a double dissolution and joint sitting in relation to this bill. We continue to hope that it will prove to be unnecessary. But, if the continued opposition obstruction of this bill makes a double dissolution necessary, the preconditions will have been met.

I note that the opposition continues to argue that the bill is unconstitutional, notwithstanding the resounding defeat of their arguments on the Hindmarsh Island Bridge Act in the High Court yesterday. They were wrong about that act, as they are wrong about this bill. A significant majority of the court held in Kartinyeri that a law passed under the races power can be amended under that power, or that the races power allows detrimental as well as beneficial laws, or both. The decision supports the government's position, all the more so because the Native Title Act, as amended by this bill, will continue to be beneficial to native title holders.

The bill preserves and respects the common law of native title, in line with the High Court's Mabo and Wik decisions. It recognises and protects native title so that it can still be claimed, in line with Wik, over 79 per cent of Australia. Unlike the current act, it specifi cally recognises and protects potentially coexisting native title on pastoral lease land—over 40 per cent of Australia's land area. It ensures that native title cannot be extinguished by a government grant of additional primary production rights to a leaseholder. The bill retains the right to negotiate for land that has never been alienated and where native title may be equivalent to full ownership. It provides native title claimants with the same procedural rights as the lessee for mining on pastoral leases. It guarantees registered claimants' existing access to pastoral lease land, pending a native title determination. It provides a clearer claims process and deals with the overlapping and multiple claims that are dividing indigenous communities. It recognises and strengthens the role of native title representative bodies to facilitate the recognition and protection of native title. And the bill enables the legally certain agreements that are essential for coexistence.

On other constitutional issues raised in relation to this bill, it should be noted that it provides significant notification and compensation rights, in some cases greater than those contained in Labor's 1993 act. Further, it meets the requirements of the constitution for just terms for any acquisition of property. The government is confident of the constitutionality of the bill, and we have released expert legal advice supporting that view. If the opposition is so confident of its arguments about the constitutionality of our legislation, then it should do what it did with the Hindmarsh Island legislation: let this bill pass the parliament and ask the High Court to rule on the matter. That will avoid a double dissolution election on this issue and allow judicial consideration of the opposition's objections. I should add that this morning the Prime Minister (Mr Howard) has announced, in furtherance of our view, that the federal government would be prepared to fund the challenge to this legislation to allow the High Court to rule finally on the matter.

This bill restores certainty to Australia's land management system in a manner which is fair, balanced and in the overall national interest. It recognises and protects native title in Australia, including native title on pastoral lease land. It balances the aspirations of Aboriginal Australians with the interests of others in the community. It recognises the legitimate needs of elected local and state governments, and farmers, pastoral lessees and miners for certainty in land management. It is based on a recognition that a positive environment for our mining and pastoral industries is essential for the economic wellbeing of all Australians and, most particularly, Aboriginal Australians. Most importantly, the bill will deliver a more certain and secure foundation for the recognition of native title in Australia.