Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Current HansardDownload Current Hansard    View Or Save XMLView/Save XML

Previous Fragment    Next Fragment
Monday, 13 February 2017
Page: 626

Native Title


Senator SMITH (Western AustraliaDeputy Government Whip in the Senate) (14:12): My question is to the Attorney-General, Senator Brandis. Can the Attorney-General update the Senate on the full Federal Court's recent decision in relation to the single Noongar Settlement?


Senator BRANDIS (QueenslandAttorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (14:12): Thank you very much, indeed, Senator Smith. That is a very important question because on 2 February—that is, at the end of the week before last—the full court of the Federal Court delivered an important decision called McGlade v Native Title Registrarin relation to the single Noongar Settlement. The effect of that decision was to overrule an earlier decision of a single judge of the Federal Court in 2010 in a case called Bygrave (No. 2), which had settled the law in relation to the necessary requisites for an Indigenous land use agreement to be registered. In short, what Justice Reeves had held in Bygrave, which until the week before last was understood to be settled law, was that it was not necessary for all members of the claimant group to consent to the registration of the Indigenous land use agreement, or ILUA.

The McGlade decision some 13 days ago overruled that decision and decided otherwise. This is a very significant development in relation not only to Indigenous land use agreements—of which there are 123 registered in Australia at the moment—but to all Indigenous land use agreements seeking registration because the effect of it is to enable a single member of a claimant group, by withholding their consent, to prevent the registration of the ILUA. This is, as I say, a very significant development in the law. It had not been anticipated.

Then, if Senator Smith cares, in his supplementary question, to ask me, I will advise him what the Commonwealth is doing about it.

The PRESIDENT: Senator Smith, a supplementary question, I presume?



Senator SMITH (Western AustraliaDeputy Government Whip in the Senate) (14:14): Well, yes actually. My question is to the Attorney-General. Can he advise the Senate what the government is doing in response to the decision of the full Federal Court?


Senator BRANDIS (QueenslandAttorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (14:14): Thank you very much indeed. I can. The Commonwealth will introduce legislation urgently to reverse the effect of the McGlade decision and to restore the status quo ante represented by the Bygrave decision.

I was first made aware of the decision of the full Federal Court the weekend before last. Last Monday I sought urgent advice from my department and arranged a briefing for myself and the Minister for Indigenous Affairs, Senator Scullion. I also brought the matter to the attention of the Prime Minister, and last week the Prime Minister authorised the introduction into the parliament, as soon as may be, urgent legislation to legislatively reverse the effect of the McGlade decision. Those instructions were given to my department last week. The matter is now in the hands of the Office of Parliamentary Counsel, and I am advised that draft legislation will be ready perhaps as early as this afternoon.

The PRESIDENT: Senator Smith, a final supplementary question.



Senator SMITH (Western AustraliaDeputy Government Whip in the Senate) (14:15): Can the Attorney-General describe the features of the government's proposed bill?


Senator BRANDIS (QueenslandAttorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (14:15): Yes, I can, Senator Smith. That is a very helpful question, thank you. Its effect essentially, as I said a moment ago, will be to legislatively reinstate the Bygrave decision. It will remove, for all such agreements in future, the requirement that all registered native title claimants sign an ILUA.

In respect of agreements that have been lodged with the Native Title Tribunal but not registered, the amendments will provide that such agreements are not taken to be invalid because they have not been signed by all registered native title claimants. Similar amendments will be made with respect to ILUAs that were registered on an understanding of the law as it stood on the basis of the Bygrave decision.

I should add that among those whom I arranged to be briefed on the matter last week was the shadow Attorney-General, Mr Dreyfus. The Premier of Queensland, Ms Palaszczuk, has called upon the federal opposition to support the federal government's amendments to reinstate the Bygrave decision, and I also ask that the federal opposition cooperate in facilitating support for the legislation.