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LEGAL AND CONSTITUTIONAL AFFAIRS LEGISLATION COMMITTEE
27/04/2011
Wild Rivers (Environmental Management) Bill 2011

CHAIR —Welcome. We have a submission from you, which we have numbered 6. I now invite you to make a short opening statement and then we will go to questions.

Ms Best —I thank you for taking the opportunity to hear the views of the Queensland government on the Error! No document variable supplied.. I would like to once again address the misconceptions about Queensland’s wild rivers framework and its perceived impact on the interests of Aboriginal people in the management, development and use of native title land. This is the third inquiry into this matter. The initial Senate inquiry in June last year, after considering 37 submissions and two public hearings, recommended that the Senate not pass the bill, saying it was not persuaded that the Queensland act substantially interfered with the current or future development aspirations of Indigenous landholders in wild rivers areas and that, even if it did, the bill before the Senate did not provide the comprehensive and considered solution needed to economically and socially empower Indigenous communities in wild rivers areas—and the bill has not changed in this regard. The second inquiry was the House of Representatives Standing Committee on Economics inquiry into Indigenous economic development in Queensland and the review of the Error! No document variable supplied.2010. It held a significant program of hearings—in Canberra, Cairns, Weipa, Bamaga, Brisbane and even on country in the Kaanju homeland—and is currently considering 39 submissions. This inquiry is yet to report its findings to the Australian Parliament.

Queensland does not support this bill and has made its concerns known to each of these inquiries. Of paramount concern is the infringement of a state’s right to make laws that the bill contemplates, and nothing in its minor redrafting since the last Senate inquiry has changed that concern. As a sovereign state, the Parliament of Queensland has the power to make laws as provided for in both the Constitution Act 1867 and the Australia Act 1986. This power, combined with the state’s constitutional responsibility for environmental protection, has been successfully used to protect and regulate the use of the environment through a range of Queensland legislation. There is no express power in the Commonwealth Constitution for the Commonwealth government to legislate in respect of environmental protection in the states and therefore be primarily responsible for enacting legislation for environmental protection through the regulation of activity and development—and that is what the Wild Rivers Act does; it regulates and sets conditions on developments that would adversely impact on the values of the river.

The effect of this bill would be to undermine and remove the Queensland Parliament’s power to protect and regulate the environment in areas declared as wild rivers areas unless the consent of the Aboriginal owners of the land is obtained. This is an interference with the lawful legislative powers of the state by the Commonwealth setting out to override the legislation of a democratically elected parliament—significantly, legislation taken as a transparent and open commitment to three state elections. If passed, this would set a dangerous precedent to Commonwealth intrusion into lawful state environmental protection legislation, not just for Queensland but for any state.

These are not the only concerns about this bill. The bill appears to provide the power of veto for owners of Aboriginal land over the effect of a declaration under the Wild Rivers Act. This provides a power beyond any held by other people in declared wild river areas and is also not a power available under any other act of parliament, including for the regulation of mining, land use planning, health or education. The drafting of the bill can only lead Queensland to conclude that its intent is to ensure that its wild rivers framework fails.

By way of explanation, the bill requires that the owner of the Aboriginal land must consent in writing for wild river declarations to remain or to be effected, providing for eight different definitions of ‘owner’. Because of the historical displacement of Indigenous people, there will likely be disputes over who the owners are for different areas. The bill does not provide for a mediation or arbitration process, nor appropriate review mechanisms where reasonable attempts to obtain agreement do not result in the required 100 per cent consensus of all owners of the Aboriginal land. Accordingly, the resistance of any one owner would have the power of blocking the wishes of the majority, effectively rendering consent unworkable and therefore rendering the wild rivers legislation, even if supported by communities, unworkable, undermining the people’s communal interest in the land which the bill seeks to reflect.

The bill’s definition of what is Aboriginal land and who is the owner of that land is extensive and would include land where native title exists as well as most of the multitude of the state’s Aboriginal tenures, even land where native title has not been resolved. This will give one group of Indigenous Australians rights over and above other Indigenous Australians, creating two classes of native title holders. This is unfair and would best be addressed by the Native Title Act. It is questionable what this policy is trying to achieve by extending native title in one part of Australia. Also, it will give veto powers over wild rivers but not over any other developments, such as mining. It is clearly not a genuine policy designed to redefine native title across Australia and for all Indigenous people.

Further, to obtain the written agreement of the native title party to land where native title exists, the bill provides that an Indigenous land use agreement, an ILUA, may be used. ILUAs are designed to deal with native matters and, under the Native Title Act, must meet a specific requirements to be authorised and registered. Most categories of ‘owner’ in the bill are not native title holders and many of the owners as defined might not have native title rights and cannot be subject to ILUAs. Even if an ILUA were an appropriate vehicle for such negotiation, the state’s experience is that the development of ILUAs can be costly and time-consuming, generally taking years to reach agreement. The bill sets out time limits of six months for achieving consent for existing wild river declarations. Developing an ILUA, negotiating and drafting its terms of reference, registering it, gaining the consent of native title holders for the ILUA to act on their behalf and reaching agreement over wild river declarations all in the six months allowed under the bill is virtually unachievable. Consequently—

CHAIR —Ms Best, I am sorry to interrupt you. Senator Boswell has something he wants to raise.

Senator BOSWELL —Ms Best, we only have limited time. I wonder how long you will continue to read the report out. How much longer have you got?

Ms Best —I will only take two more minutes.

CHAIR —Thanks, Ms Best. We will get you to finish.

Ms Best —Thank you very much. Consequently, it must be assumed that the effect of the bill is that declarations will expire, even in areas where there is widespread support, where an ILUA is required. For other owners the bill provides no guidance about the nature, substance or form of the required written agreement, instead relying on the exercise of a regulation power for any detail. This regulation—and this is a very important point—is not presented within the bill, precluding proper legislative scrutiny and parliamentary consideration of the ramifications of the process. It also places the Queensland government in the untenable position of starting negotiations with owners to meet the six-month deadline without knowing the regulatory requirements. In the six months provided to reach agreement before the wild rivers declaration ceases to have effect it is essential that all details about the process of the agreement are known before any bill is passed. Of even greater concern is the bill’s attempt at defining the owner of Aboriginal land, which would see the inclusion of entities or individuals who traditionally or otherwise are not part of the group and the exclusion of individuals from the group who traditionally or otherwise are part of the group.

I would like to make the point that it is not consistent with other Queensland legislation such as the Vegetation Management Act. An example of the difficulty would be the inclusion of the trustee of a reserve for Aboriginal purposes under the Land Act 1994. We would have the Department of Communities as the trustee of the reserves being required to provide written consent to demonstrate the consent of Aboriginal people. That is one example. How can the bill work if the definition of Aboriginal people is not sufficiently clear and precise and includes some individuals and excludes others from the agreement? It is also questionable whether the bill demonstrates sufficient understanding of Aboriginal tradition and the way in which agreement is achieved by those empowered to speak for country. Queensland submissions have argued that the bill fails in its objective of protecting the interests of Aboriginal people within wild rivers areas to own, use, develop and control that land. The state’s view is that this objective is best achieved and is indeed consistent with the planning and development arrangements called up through a wild rivers declaration.

Since the introduction of this legislation, there has been substantial consultation with Aboriginal people and communities—granted this process has improved over time and will improve further with Minister Kate Jones’ recent announcement of a Sustainable Cape Communities initiative. This initiative will see the establishment of Indigenous reference groups set out in the legislation to provide legitimate and representative advice to the minister from those nominated by communities to speak for country on wild rivers declarations. Interestingly, this proposal was discussed and confirmed in writing with the Director of Cape York Institute, Mr Noel Pearson, in 2009. However, we have yet to receive a response to those discussions around this new model.

We ask the Commonwealth to work with Queensland in establishing enduring governance arrangements across a range of matters for consultation in the cape, not just wild rivers. We want to build capacity across communities to represent themselves in discussions about their land, and we respectfully ask that the Senate give these arrangements a chance before taking the place of the state legislature. Queensland can only come to the conclusion that this bill is not about what it purports to be, but rather intends to render Queensland environmental law unworkable. The bill seeks to unite Aboriginal people in wild rivers areas; it is doing the opposite. It seeks to provide certainty for development; it is doing the opposite. Wild rivers simply puts a development assessment framework on developments that would adversely impact on the values of the river system. This does not mean camping, grazing, tourism, dams for stock and domestic purposes, housing or market gardens cannot occur. It does mean open-cut mining and large dams that would affect flow cannot occur in a high preservation area.

As outlined in our submission to the House of Representatives inquiry, there is no difference in the level and type of development applications being lodged and approved before and after the wild rivers legislation. Of the more than 170 development applications received by this department, more than 140 have been granted in relation to mining activity, riverine protection permits and approvals under the Vegetation Management Act and mining tenements. There are, however, significant impediments to economic development in Cape York, including distance to markets, extreme climatic conditions, poor soils, reliable access to water, lack of infrastructure and skill shortages.

Queensland has been working with communities to address these issues, acquiring more than 1.6 million hectares of land since 1994 in collaboration with traditional owners. Some 617,000 hectares have been transferred to Aboriginal ownership and 575,000 hectares of new national park have been finalised and formal joint management arrangements have been established for all new and existing national parks on the peninsula. Were the bill to be enacted and the wild rivers declarations become ineffective, the consequential uncertainty created seems to offer little towards the policy objective of protecting the traditional owners of Aboriginal land within the wild rivers areas to own, use, develop and control that land. Indeed, because the bill is ambiguous and not drafted in a sufficiently clear and precise way, the exact opposite outcome is extremely likely. Thank you.

CHAIR —Senator Boswell, you have some questions.

Senator BOSWELL —Miss Best, the Queensland government’s response to the House of Representatives standing committee into Indigenous economic development in Queensland in view of the Wild Rivers Bill 2010 asserts that on 31 March 2009 Minister Robertson wrote to the Premier. Can you confirm that, please? On 31 March, Minister Robertson wrote to the Premier.

Ms Best —Yes, I can confirm that, Senator Boswell.

Senator BOSWELL —The letter advised that he had considered the results of community consultation and all properly-made submissions. That is in the letter, isn’t it?

Ms Best —Yes.

Senator BOSWELL —The minister requested permission to submit the declaration for approval by governor in council at the next executive council meeting, to be held on 2 April 2009. Is that correct?

Ms Best —Yes.

Senator BOSWELL —The ministerial briefing note was not forwarded to him until after 4.57 pm on 1 April 2009. That is what the department’s system indicates. Is that correct?

Ms Best —That is what the system records. That is when an administrative assistant enters it on the database. A brief is progressed before that, but it is when the admin assistant actually records it.

Senator BOSWELL —How could the minister tell the Premier the day before receiving the ministerial briefing that he had considered the consultation and all properly-made submissions? How could he have done it? He was not aware of it until 4.57 pm on 1 April.

Ms Best —He was aware of it, and I know from the freedom of information documents that many of these briefing notes are in the public arena. All relevant material was provided to the previous minister, the Hon. Craig Wallace, in February. The materials—and they were in folders—included all the public submissions and they did include detailed analysis of those public submissions. When the Hon. Stephen Robertson was sworn in as the minister for natural resources, mines and energy and minister for trade—that was on 26 March—the minister was in receipt of a submission made on the Archer, Stewart and Lockhart declaration proposal. In terms of what was provided to him, there were fairly large folders with all those submissions in them. We have a detailed analysis in the front of those folders, which would include analysis by issues, analysis by stakeholder groups and there were also briefings of the ministers by senior officers, myself being one of them, around those materials in those folders—as well as a range of other materials that we were required to brief an incoming minister.

One of the things that was not with that folder is a consultation report. Under the act we are required to provide a consultation report within 30 days of a declaration being made. We did not do that. We were working on a consultation report within the 30 days, but Minister Robertson instructed us that in future declaration proposals he would like to release the consultation report at the same time that the declarations are being made, because he thought it was appropriate, rather than waiting the 30 days, that we provide that information back to people who had made submissions. One of the improvements that we have made to our process since that time has been the production of a consultation report which is released at the same time as when the declarations are made.

Senator BOSWELL —Could I interrupt you there, please? I am concerned that the minister received an advice at 4.57 pm on 2 April, and I understand the public submissions were with that briefing note.

Ms Best —The public submissions were already in the minister’s office and he was briefed on them, and then they would have been with the briefing note again. As I said before, the time that you are recording would be the time that an administrative assistant was recording it on the system. The minister definitely had the folders in his possession for his scrutiny prior to the briefing note going in. We make multiple folders, because I need one for the director general, myself, the minister, his offices, and then we attach one to the briefing note.

Senator BOSWELL 14:54:57 —I would like to keep moving on this. In the same response to the standing committee, the Queensland government advised that CTS 02637/09 was signed by the minister’s office on 1 April 2009. It was signed by the minister’s office. When did the minister sign the briefing note?

Ms Best —The minister himself signed the briefing note.

Senator BARNETT —When?

Ms Best —Have I missed something there, Senator Boswell?

Senator BOSWELL —I want to know when the minister signed the briefing note.

Ms Best —The minister signed the briefing note himself.

Senator BOSWELL —When did the minister sign the briefing note?

Ms Best —On 1 April. I could not give you the time because we do not record a time that the minister signs a briefing note.

Senator BOSWELL —The minister signed the briefing note on 1 April?

Ms Best —Yes.

Senator BOSWELL —Well, why did you tell us that the office signed the briefing note on 1 April? You said, in response to the standing committee, the Queensland government advised that CTS 02637/09 was signed by the minister’s office on 1 April. Now you are telling me that the minister signed it on 1 April. So there is a very large inconsistency there.

Ms Best —Senator Boswell, I would have to check for that question you have asked me about the minister’s office but certainly the minister signed the briefing note. And I think that particular briefing note is in the public arena.

Senator BOSWELL —All right. He signed the briefing note on 1 April and yet Minister Robertson asked the Premier to put this before the Executive Council on the 31st, before he signed the briefing note.

Ms Best —As I stated before, when the minister took up office the briefing materials with all the public submissions were there available for the minister, as are briefing materials on a whole range of topics—

Senator BOSWELL —But cannot you see that you have signed a briefing note, which you say is the instrument, on 1 April. But before you signed it you asked the minister to put it before Executive Council. Can’t you see the inconsistency in that? You cannot sign an instrument off on 1 April when you have asked—

Ms Best —Mr Boswell, it—

Senator BOSWELL —Please hear me out, because I want this to go on the record. In your own admission there, you have signed the instrument on 1 April 2009, but you asked the Premier to put it to the Executive Council before you signed the briefing note.

Ms Best —Normal protocol, normal administrative arrangement, would be to write to the Premier to seek permission to put something on the Governor in Council agenda, but that does not mean that the minister has to have signed the brief before the minister writes to the Premier. It is really about making sure that the administrative processes for Governor in Council are manageable and able to be delivered in an appropriate time frame.

Senator BOSWELL —Is the briefing note that we are talking about,CTS 02367/09, the instrument that section 15 requires?

Ms Best —Yes. This is the part of the Wild Rivers Act approval process that the minister makes the declaration—

Senator BOSWELL —This is the instrument that section 15 of the act requires—that is my question. This is the instrument by which the act is secured?

Ms Best —The decision-making process of the Wild Rivers Act is that the minister must make a decision to proceed or not to proceed. It is in section 15 of the Wild Rivers Act.

Senator BOSWELL —I am asking you if this briefing note is the instrument that section 15 requires? Is this the briefing note that he signed?

Ms Best —Yes. If the minister makes a decision pursuant to section 15 of the Wild Rivers Act—

Senator BOSWELL —How could he sign a briefing note that says that you will do such and such to wild rivers on 1 April? He signed the briefing note on 1 April and he wrote to the Premier on 31 March, the day before, so he has not signed off on it.

Ms Best —No, but as I said before—

Senator BOSWELL —Did this briefing note go into the Executive Council?

Ms Best —It would be part of the ministerial—

Senator BOSWELL —How can it go into the Executive Council before he has even signed it?

Ms Best —As I said, the letter to the Premier is part of normal administrative arrangements.

Senator BOSWELL —I am not interested in the letter to the Premier.

CHAIR —Senator Boswell, I think Ms Best is trying to explain the process to you, so let her do that. I remind you that we have other senators here wanting to ask questions and that we are actually inquiring into the legislation before us, not the process that led to the declaration of the wild rivers. Ms Best, continue with your answer. You will be uninterrupted this time.

Ms Best —Thank you, Madam Chair. As I said, the fundamental requirement of the Wild Rivers Act is that the minister considers the results of the public submissions, the minister makes a decision and the minister seeks governor in council approval to declare that part of the state a wild river area or otherwise. So the process is followed, adhered to the Wild Rivers Act.

Senator BOSWELL —Thank you, but I am asking you if this briefing note went to the Executive Council on 31 March.

Ms Best —The declaration goes to governor in council.

Senator BOSWELL —You have admitted that the briefing note is the declaration under section 15.

Ms Best —The briefing note is the decision-making tool to make the declaration.

Senator BOSWELL —And that would have had to go to the governor in council?

Ms Best —Once the minister either endorses or does not endorse—and if the minister did not endorse that briefing note then the minister would have had to put a public notice out to the effect of why he decided not to declare. A separate range of documents go to governor in council, including the declaration.

Senator BOSWELL —So you have admitted that it went to the governor in council, but he did not get it until 1 April but he sent it on 31 March. How can you send something that you have not got?

Ms Best —As I have said previously, the normal administrative arrangement is to write to the Premier in advance. It did not mean that he had made the decision. He was still considering the submissions. He was alerting the Premier to the possibility. It is part of our normal administrative arrangements for a minister to write to the Premier about going to governor in council.

Senator BOSWELL —But you are saying that he put the briefing note, which is the instrument, into the governor in council.

Ms Best —What I said was that that is the decision-making process for him to decide whether to declare and then a range of materials, including the wild river declaration, go to governor in council.

Senator BOSWELL —Can you tell me how this matter qualified for inclusion on the executive council’s agenda as a late minute? It would almost have to be very—

Ms Best —I do not think it is within my remit to make a comment on. I do not have anything to do with the agenda for governor in council, so I really cannot comment on the formulation of the agenda for governor in council.

CHAIR —We have to move on, Senator Boswell.

Senator BOSWELL —I have one more question, if I may. When did this briefing note, this instrument that you have admitted was required under section 15, go to the governor in council?

Ms Best —It was considered by governor in council on 2 April.

Senator BOSWELL —It went to the governor on 2 April?

Ms Best —Yes.

Senator XENOPHON —I want to focus on the difference between this bill and the previous bill. Is the Queensland government saying that it is broader in terms of the land that it would apply to?

Ms Best —I will ask Leslie Shirreffs to answer that one. We are getting a piece of paper here.

Senator XENOPHON —I have one more question on issues of consent as well, Chair. While you are considering that, Ms Best, can I go to the only other question I have. When I went to visit Cape York in January, when I went to Aurukun, Lockhart River and Coen, the message I got loud and clear from the community was that there was a distinct lack of consent and consultation with the community about the wild rivers legislation. Many members of the community felt quite insulted that they would not consulted in relation to the declarations. Could you comment on that? I think there is very deep seated concern in the community about that.

Ms Best —With the consultation on the cape, the standard process is four months to do consultation, but we take far longer than that. We estimate we would have spent up to 18 months undertaking a range of consultation processes on the cape. What we are very cognisant of is trying to make sure that we get to as many people as possible and make them aware of what the wild rivers legislation is about. We like to hear their views on the natural values in the area, because part of it is making sure that we have picked up all the natural values that they want protected, all the areas of concern that they might have. We go back many times to talk to different groups and we use different ways of talking to groups. We actually paid Balkanu money to assist us in working with various groups in the communities to ensure that we got to as many people as possible.

Senator XENOPHON —I am conscious of time constraints. Perhaps you could take it on notice. If it is not too difficult to do in the next week or so, could you provide details of the nature and extent of consultation? The feedback I got, not just from community leaders but from people in the local communities that I went to—Coen, Aurukun and Lockhart River—was that there was no real, effective consultation before the declarations were made. I think that was a very genuine concern for the people that I spoke to.

Ms Best —We would be more than happy to provide that to you, because we had over 100 meetings with more than 300 people. We will provide geographical locations, times et cetera for you.

Senator XENOPHON —If you could, that would be great.

Ms Best —We are more than happy to do that.

Senator XENOPHON —The other issue was one of the extent of the land. I want to home in on the difference between this bill and the 2010 bill.

Ms Best —I will defer to Andrew Luttrell to answer that for you, Senator.

Mr Luttrell —The bill certainly uses a different window to describe the land over which the owner of that land must consent, in the sense that the previous bill spoke about native title land; the current bill describes Aboriginal land. So, arguably, there would be land which would not be native title land—that is, areas where native title was extinguished—which falls within the definition of Aboriginal land: that is, falls within the definition of the new bill; that is, not in the old bill. That is undoubtedly true.

Interestingly, I suppose that the definition of Aboriginal land includes some interests but not other interests. So, for example, a trustee lease under the Aboriginal Land Act is not actually included in the definition of Aboriginal land. And I think Debbie, in her opening statement, indicated, for example, that there are a number of inclusions of owners of Aboriginal land which we do not think would be traditionally a part of the decision making group of the Aboriginal people. Equally, there are a number of people who are excluded by this definition of Aboriginal land—that is, where you require the consent of the owner of that land.

Senator XENOPHON —So it is broader, in your view, but it is just a different way of dealing with the issue from the proponents of the bill’s perspective?

Mr Luttrell —Yes. I guess it does not solve the problem which I think we have also identified, and that is: trying to work out when you have the agreement of the Aboriginal people. In that sense, it might actually, arguably, be a weaker position, because more people have now been included than, potentially, those who would have been included if it were just native title land. The issue that we have identified is that of having to have 100 per cent consensus of all the owners. We are unaware of any other legislation where you need 100 per cent agreement of all owners to say there is an agreement.

Senator XENOPHON —That is not the case though, is it? It is the representative bodies that would have to, through their own mechanisms, determine what—

Mr Luttrell —I would disagree with that. Some of the owners would actually be individuals. So, for example, the owner of a perpetual lease under the Aborigines and Torres Strait Islanders (Land Holding) Act has to be an individual. So you would not have had a corporation that was representative of the interests of the Aboriginal people there; you would have had a person who, in 1985, 1991, made application for what we called a homeownership lease in that community. So I do not think it is fair to say that it is all working through institutions or representative institutions of the Aboriginal people.

Senator XENOPHON —So in those cases where you say it is an individual, are you saying that this bill would require that individual’s consent insofar as that portion of the land that they have the lease over—

Mr Luttrell —Yes.

Senator XENOPHON —Right. I am conscious of time, so if there is anything else you wanted to put, on notice, in terms of those technical aspects, I would appreciate that. Finally, on the issue of consultations—and I appreciate that you will be sending me some more details on that—could you just provide details of the quality of those consultations? In other words, what was the nature and extent of it? Was it a case of saying, ‘This is what we are planning,’ or, ‘What do you think of this particular plan?’ I guess that is one way of putting it in shorthand.

Ms Best —We will try and make sure we capture that as well. We could also indicate where some elements of the declaration changed as a result of consultation, when people provided feedback; some of the changes reflected what they were asking for.

Senator XENOPHON —I guess I am reflecting on the concerns that were put to me by communities and individuals that I spoke to in January. It was a real concern to me that they felt that they were out of the loop and were not fully consulted. But anyway, I would be grateful to look at the answers to those questions on notice.

Ms Best —Okay.

Senator XENOPHON —Thank you very much.

Senator FURNER —Ms Best, thank you for your submission to the House of Representatives concerning this matter. I note that, in appendix 5, you have attached the ABS stats for economic development up in the cape, and that during the period 2006 to 2010 there was a change—an increase, in fact, in employment of some 546 jobs, or a 0.52 per cent increase. There is also, in one of your appendixes, a copy of the development approvals—some 170, I believe you quoted in your opening statement?

Ms Best —Yes.

Senator FURNER —Have you got any statistics as a result of those development approvals? Has there been an increase in those 546-odd jobs since 2010? Do you have any figures in that respect at all?

Ms Best —We have not done any analysis across those development applications and employment statistics, but we can certainly ask the appropriate agency and government to check what analysis they have done. I know they have been working on that as part of their proposed economic development strategy.

Senator FURNER —If you could, that would be helpful. In your current submission you raise a concern about the likelihood of loss of employment. You cite some 40 rangers and the likelihood of the loss of an additional 60 positions. Where do you draw that conclusion from? I note that, in part 4(3)(b) of the bill, there is a provision in there that states: ‘Should the enactment of this act result in the loss of employment by persons employed or engaged to assist in the management of a wild river area, the Commonwealth government will pick up the tab for loss of those conditions.’ I guess it refers to persons, so it could apply to more than rangers. Is that your view? Are you specific in terms of it only having application to rangers?

Ms Shirreffs —That relates specifically to the employment of wild river rangers where there is a commitment from the Queensland government of 100. Forty have already been appointed and, whilst the bill provides some certainty, the Aboriginal communities have asked us to move to secure that in legislation so that those 40 jobs are protected. It would be unusual for a Commonwealth bill to terminate employment, but they do not think the bill is prescriptive enough to understand how that guarantee of employment would actually translate into employment conditions and engagement of those people on a continuing basis in the way that we have agreed with communities.

Senator FURNER —In terms of their employment I take it that they would currently be employed under an industrial state instrument of an act of parliament. This bill seems to suggest the Commonwealth government possibly stepping in to assist them in that regard. Is that your understanding?

Ms Shirreffs —Currently, they are employed by communities, which is the preference of communities. But under the wild rivers legislation we have got to provide certainty for continuing employment because of the uncertainty created in the current climate. I do not think the bill is clear enough in telling us how they would be employed by the Commonwealth government or where that funding has been provided. That would also fall short of the Queensland government’s commitment to provide 100 rangers, because I would assume that the bill refers to those who are currently employed.

Senator FURNER —That is right. I do not have any further questions.

Senator BARNETT —Mr Luttrell, you are a lawyer, are you not?

Mr Luttrell —I have legal qualifications.

Senator BARNETT —You appeared before this committee at the last hearing; is that right?

Mr Luttrell —I appeared in Cairns, yes.

Senator BARNETT —I thought you did. Senator Boswell has been asking about a briefing note, 0263709. Would you describe that as a briefing note or a declaration?

Mr Luttrell —I am not actually familiar with that document.

Senator BARNETT —I thought you were. As a lawyer, I am asking you whether it satisfies the description of a wild river declaration pursuant to sections 15 and 16 of your Queensland Wild Rivers Act 2005? Is that a yes or a no?

Mr Luttrell —I am not familiar with the document.

Senator BARNETT —We have been discussing it for the last 50 minutes or thereabouts.

Mr Luttrell —I acknowledge that, but I am not familiar with the document.

Senator BARNETT —If you cannot answer it, I will ask Ms Best. Ms Best, what is your answer to that question?

Ms Best —Your question, again, was: am I—

Senator BARNETT —Is this ministerial briefing note, 0263709, a briefing note or is it a declaration pursuant to clauses 15 and 16 of the Wild Rivers Act 2005?

Ms Best —It is a decision-making tool to declare the declaration or to make the declaration. Once the minister decides to make the declaration, the declaration is attached to the briefing note.

Senator BARNETT —Was it attached to the briefing note?

Ms Best —Yes, it was attached to the briefing note.

Senator BARNETT —Where is it? We do not have a copy of it in front of us. I have asked for this document. I asked for it in Cairns, I asked for it on notice and you have not provided it to this committee. I asked for that declaration and it has been refused. You are telling me it has been provided. I would like it and I would like it immediately. Do you have it in front of you?

Ms Best —I have my own copy of the briefing note in the information that—

Senator BARNETT —No. I want the declaration. Let us confirm one thing: this briefing note is not a declaration. Do you agree with that?

Ms Best —The briefing note is a decision-making tool for the declaration. Terry Boyle is just saying to me that he is fairly sure the declaration is actually on our website. So it is not a case of refusing to provide information to you. I apologise if you feel that you have been refused information. I am more than happy to have discussions about how we can get the information to you. My advice is that it is actually on the web. So it is publicly available.

Senator BARNETT —We have asked for it in Cairns, we have asked for it on notice and it is so difficult to get it to us, so we will be fascinated to see whether it is on the website. Let me just confirm one thing: you are saying that this is a briefing note, not a declaration. Let me just clarify with you: this is not a declaration, it is a briefing note? Is that right?

Ms Best —It is the minister’s decision and it recommended that the minister approve the declaration. The minister has got ‘approved’ on the top.

Senator BARNETT —Where has he signed that?

Ms Best —He has signed it on the top. He has circled ‘approved’ and that is his signature. This is the copy I have in front of me.

Senator BARNETT —As far as you are concerned, it says down here at the bottom: ‘Proposed action. Subject to minister’s approval, the department will progress the above-mentioned documents to the Governor in Council.’ So, with his approval, it has gone to Governor in Council, has it not?

Ms Best —Yes.

Senator BARNETT —So it is not a declaration; it is a briefing note, which he has approved and which has gone, according to your advice, to the Governor in Council? Correct?

Ms Best —I am just not understanding what you are asking. I do apologise if I do not have it clear. Our standard process—and this is according to our legislation—is to provide information to the minister and the minister signs the brief. It then gets attached to the briefing note and then the dec—not the briefing note—that was attached gets sent to the GIC. I am more than happy to make sure that we send you personally a copy of the dec that was attached to this briefing note. It is on the web.

Senator BARNETT —Will you forward to the committee everything that is attached to that ministerial briefing note that you have in your possession? Do you give that undertaking?

Ms Best —I understand that the committee already has that.

Senator BARNETT —No. I am asking you to forward to the committee whatever you said you have in front of you, which is the briefing note and all of the attachments, which also include the declaration or proposed declaration. Are you willing to undertake to forward that to the committee?

Ms Best —As we have already provided the information, I do not see a problem with it. But it is disappointing—

Senator BARNETT —It has not been provided, Ms Best.

Ms Best —that you focus on this particular aspect of the inquiry, which I thought was outside the terms of reference. If you have had difficulty finding the materials that have already been sent, we are happy to send the materials again.

Senator BARNETT —I am asking you to do what I have just asked, and I am asking you to undertake to do that.

Ms Best —I just said we are more than happy to provide—

Senator BARNETT —Thank you very much.

CHAIR —Ms Best and your colleagues, we do not have any further questions for you. So I thank you for your submission and the time you have taken to assist us with our inquiry this afternoon.

Ms Best —Thank you, Madam Chair. There are couple of actions for us to follow up on, which we will do through the secretariat. We would like to thank you, again, for the opportunity. Also, we would like to table our opening statement, so we will send that to the secretariat so that you have a copy of it.

CHAIR —Thank you very much.

Proceedings suspended from 3.25 pm to 3.38 pm