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Tuesday, 5 November 1996
Page: 6552

Mr MELHAM(9.10 p.m.) —The Hindmarsh Island Bridge Bill 1996 is the bill we don't have to have. There is no doubt that, with a change of government and with the discretion that the current Minister for Aboriginal and Torres Strait Islander Affairs (Senator Herron) has—discretion that has been confirmed in recent court hearing after recent court hearing—there is no impediment to the Hindmarsh Island Bridge proceeding.

The introduction of this legislation can fairly be described as the `Ian McLachlan payback bill'. This is the legislation that this government is introducing in an attempt to vindicate the disgraceful performance by the current Minister for Defence (Mr McLachlan) when he was shadow minister that led to him resigning from the frontbench. It is a situation that is absolutely unnecessary.

It is interesting that tomorrow the minister is launching a book in relation to the Hindmarsh Island affair and it is interesting that the cheer squad is in the gallery this evening. I think it is fair to say that the Minister for Defence would be more productive spending his time looking after his portfolio than introducing a bill into this parliament that is absolutely unnecessary.

Last week a financial report for 1995-96 from the Department of Defence was tabled in this House. That showed that the military budget blew out by $100 million in the last financial year. You would have been better off putting your attention to bringing the Department of Defence into line and maybe sending in a special auditor.

There are some amendments that are circulating that I will be moving during this debate. They support the view that we hold that this bill is totally unnecessary. At the conclusion of the second reading debate, I will be moving:

That all words after "That" be omitted with a view to substituting the following words:

"whilst not declining to give the Bill a second reading, the House is of the opinion that the construction of the Hindmarsh Island bridge can now proceed without further delay and without prejudicing the operation of the Racial Discrimination Act 1975".

If we are unsuccessful in that amendment, I will be moving in the consideration in detail stage the following amendment:

(1)   Page 1, after clause 2, insert the following new clause:

      2A Racial Discrimination Act to prevail

   (1)   For the avoidance of doubt, it is expressly declared to be the intention of the Parliament that the terms of the Racial Discrimination Act shall prevail over the provisions of this Act.

   (2)   Nothing in this Act shall be taken to authorise any conduct, whether legislative, executive or judicial, that is inconsistent with the operation of the Racial Discrimination Act.

(2)   Clause 3, page 2, after the definition of pit area add the following definition:

Racial Discrimination Act means the Racial Discrimination Act 1975 .

If the government were fair dinkum, they would have no problems supporting that amendment during the consideration in detail stage of the bill. The Prime Minister (Mr Howard) has declared in this House that his government will respect the provisions and the spirit of the Racial Discrimination Act. Coalition policy says that we should respect the provisions of the Racial Discrimination Act.

We had a debate last week in relation to racial tolerance in this country where both sides of the House, it is fair to say, supported the resolution. It is not in dispute in this country any more that all major political parties have it in their policies to respect the provisions of the Racial Discrimination Act. This bill does not do that. If the government says that it does, then it should have no problem supporting the amendment in relation to the Racial Discrimination Act that I propose to move.

If the government says it is unnecessary, then it just becomes a motherhood resolution. In the current climate, it is necessary to send a signal out to the community. Let us put it beyond doubt: if the Minister for Defence says it is unnecessary, he should have no problem in supporting it. If it is unnecessary, all it is is a statement of principle that all sides of the House agree on.

But the reality is it is necessary because this is a discriminatory bill. This bill discriminates against a class of person; namely, indigenous people. This bill is not necessary because we have had a change of government. We have a minister who has an absolute discretion and a parliament that has an absolute discretion.

The Minister for Aboriginal and Torres Strait Islander Affairs currently has before him another report under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 in relation to Boobera Lagoon. He was given that report dated 20 April 1996 on 22 April 1996.

The minister was taken to court in relation to the Boobera Lagoon because it is fair to say that the Boobera Lagoon report recommends protection of the Boobera Lagoon. It is a positive report under the heritage protection act, but indigenous people in New South Wales are powerless to force the minister to exercise his discretion one way or the other. The best they can do is ask the minister to exercise his discretion one way or the other.

The minister in response to a question in the Senate on Monday, 28 October 1996 floundered, but then had incorporated into the Senate record on Tuesday, 29 October 1996 an answer to the question we put to him. It is worth reading. We asked:

Does the government intend to introduce legislation into parliament regarding Boobera Lagoon?

His answer to that was:

(c): I do not intend to introduce special legislation in relation to Boobera Lagoon.

Why? Because his discretion under the act at the moment is absolute. There is nothing stopping the construction of the Hindmarsh Island Bridge commencing tomorrow. Indeed, since December, when the Federal Court confirmed an earlier decision of the single court judge, there has been no protection order in existence in relation to the Hindmarsh Island Bridge area, which leaves it absolutely open for that bridge to proceed. There has been no protection order in existence since 7 December 1995.

With a change of government and a new minister, the minister's discretion is absolute. We are told in the second reading speech that it is all too hard. Frankly, the minister is asleep at the wheel. That is the problem. We are told:

The decision to prepare separate special legislation to overcome the current situation is seen by the government as being the most practical course to resolve the issue once and for all.

How fair dinkum is this government? Is this a bill that is requiring urgency? Has the government made any attempt to turn this into an urgent bill? No. We have a letter from the opposition whip in the Senate, Senator Chris Evans, dated 28 October 1996, which says:

Dear Daryl

Please be advised that the Government Leader in the Senate, Senator Robert Hill, has advised that the Hindmarsh Island Bridge Bill is one of a group of Bills that will unlikely be dealt with in the Senate this year.

The Government has prioritised its legislation into two categories—the first group described as "high priority", the second group described as "to be dealt with this sitting time permitting". The Hindmarsh Island Bridge Bill is in the second group. There are 23 packages of Bills contained in the "high priority" grouping.

Senator Hill has advised the Leaders and Whips of all parties in the Senate that he would be hopeful of dealing with the high priority Bills this year, but accepts that it is highly unlikely that the Senate would deal with any Bills not contained in that high priority group.

Based on that advice I think it highly unlikely that the Hindmarsh Island Bridge Bill will be debated in the Senate until early next year.

Yours sincerely


Opposition Whip in the Senate

Labor Senator for Western Australia

That letter was written on 29 October and 31 October was the cut off. So this bill cannot be debated in the Senate until next year because of the Chamarette cut-off motion if it follows those guidelines.

The reality is the government is able to allow construction of this bridge tomorrow. There is no protection order in existence. The government knows it. Anyone with half a brain knows it. There are some procedures that need to be followed. They are technical procedures, but it does not want to follow them because it wants to pursue a political agenda in the lead-up to the South Australian state election. That is what this is all about.

The reality is that this minister has the benefit of a number of Federal Court decisions. He has the benefit of a High Court decision delivered on 6 September that said:

The reporter is not expressly required to hold a hearing, but may nevertheless be obliged to observe requirements of procedural fairness.

It further states:

Such a determination is essentially a political function. A reporter may choose to act independently of the Minister in determining the interests to be preferred, but the Act does not require the reporter to disregard ministerial instruction, advice or wish in preparing the report.

Further down it states:

The decisions to be made by a reporter are political in character.

Why did the minister table Justice Mathews's report in the Senate? Because he was playing politics. The recommendations of that report cannot be used. It is worth quoting page 12 of Justice Mathews's report—

Mr McLachlan —Are you going to use that now?

Mr MELHAM —The minister asks if we are going to use it. What can be used is the evidentiary material that is now public material. There is an exception in the Tickner v. Bropho case. You want to get yourself a decent lawyer. You are a bush lawyer. The reality is that all sides of politics are saying the bridge can now proceed. You are in government. Your minister has an absolute discretion. Even if he were to exercise his discretion in an erroneous fashion allowing a protection order to come into existence, it is a disallowable instrument under the heritage protection act.

Who has got the numbers in the House of Representatives in an overwhelming fashion? A disallowable instrument is what a protection order is. Section 13(6) of the heritage protection act states:

Nothing in this section limits the power of the Minister to revoke or vary a declaration at any time.

It is all there. But we have a lazy government, a government not prepared to follow due process, a government that wants to play politics, a government that wants to further divide and a government that says, `We don't want to act in a discriminatory manner. We want to respect the Racial Discrimination Act.'

Isn't it sad what the member for Oxley (Ms Hanson) is doing? What she is doing is sad in relation to a lot of things. There is no doubt that there is cross-party support. What sort of signal does this send? This is what Justice Mathews said about this whole process:

. . . it has been a painful and divisive process. . . I fear that its legacies may remain long after its completion.

The events precipitated by the bridge proposal have thus far revealed many deficiencies in Commonwealth laws designed to preserve and protect areas and objects of traditional Aboriginal significance.

. . . . . . . . .

It reflects the fundamental differences between the introduced common law system and the legal system of the indigenous oral culture. This latest episode in the Hindmarsh Island bridge saga has provided graphic illustration as to how little our apparently beneficial heritage legislation has accommodated to the realities of Aboriginal culture.

Justice Mathews says on page 2:

. . . the applicant women have not been prepared to reveal the contents of any restricted women's knowledge. Accordingly it has been unnecessary in this Report to embark upon the vexed issue of whether "women's business" or restricted "women's knowledge" exists in Ngarrindjeri culture.

In the absence of restricted women's knowledge, other issues assumed much greater significance under the application than had initially been anticipated.

One of the reasons the women did not cooperate in providing that material is that the current government would not provide a female minister to receive the evidence. Notwithstanding that, the position is that Tickner and Western Australia says in effect that what you have to do in providing procedural fairness and natural justice in terms of common law is basically provide the information.

The Broome crocodile farm case is an example of cases that have recently been decided by the Federal Court. The reality is, however, irrespective of whether the women were to go down that path and provide the material that satisfied the minister, that the minister still has an absolute discretion.

Justice Elizabeth Evatt—remember her?—has written the report on the review of the Aboriginal and Torres Strait Islander Heritage Protection Act. She has just been re-elected to the United Nations human rights section. She got the second highest vote, supported by your government. She confirms the absolute discretion that the minister now has. She says on page 15 of the report:

Aboriginal people are critical of the Act because the power to protect areas and objects is discretionary. The Minister is not obliged to act, even if an area is of significance to Aboriginal people. He/she can revoke a declaration without any express requirement to consult the parties. The Act does not specify criteria which, when established, confer a right to a declaration. The political nature of the discretion is discussed in Chapter 10.

She cites the Wamba Wamba Local Aboriginal Land Council v. Minister Administering the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, which talks about discretion under section 9 and it flows over to section 10.

We, on this side, can see that with the change of government the minister has an absolute discretion. There is absolutely no way this bridge can be stopped. So why is the legislation necessary? The legislation is necessary as a political stunt to vindicate the Minister for Defence and indeed the Liberal Party. It is not necessary.

You won the last election. The reality is that you should withdraw your involvement in this matter. The fact is that you have lost all objectivity. You are shaming yourself in relation to this. I am not standing here and saying it is a decision that is out of our hands. What I am saying to the parliament in all honesty, in all good faith, is that, on the basis of three legal opinions from senior counsel in New South Wales and on the basis of material I have received from other interested parties, there is no impediment to this bridge proceeding if the minister were to conduct himself in a proper fashion.

There are a number of options. There is an argument that no further material is necessary, that there is enough material in the public domain for the minister to withdraw from the process and objectively consider all the material that is available. He has an absolute discretion to say, `I am not going to order a declaration in relation to this area,' which, as I say, allows the bridge to proceed. A more conservative view is that what he needs to do—

Mr McLachlan interjecting

Mr MELHAM —There is no declaration in existence. There is no declaration. If you go to the Tickner v. Bropho exception, the law is pretty firm on that view. The more conservative legal opinion—

Mr McLachlan —Are you sure?

Mr MELHAM —It is really interesting. They are not interested in debating the merits of what I am saying. I had the benefit of the minister sending us legal advice on an in-confidence basis—and I will not breach the confidence of the legal advice. I understand where they are coming from. We were given permission to give those legal opinions to our legal advisers, and there is disagreement—strong disagreement.

The one thing I will say about the legal advice that the government was relying on and sent to us—because the minister issued a press release the day after saying that he had sent us the confidential legal advice—is that the advice was prepared without the bill being before those legal advisers. The minister said in his letter:

I also attach, on an in-confidence basis, a copy of legal advice from the Attorney-General's Department. The advice confirms that the only way to avoid further legal delays and expense to the construction of the bridge is by legislation.

That is not borne out in the advice. He continues:

As you will see from the bill, I have also taken account of your concerns about retrospectivity and the Racial Discrimination Act. The Bill is consistent with the RDA and is not retrospective.

If the bill is consistent with the Racial Discrimination Act, then the government should have no problems in supporting the amendment that I will be moving in relation to the Racial Discrimination Act in the consideration in detail stage of this bill. If they do not, then they will be exposed not only for their hypocrisy but for being too smart by half. Surely, in all the public utterances of the Prime Minister in other places and in this parliament, they are duty bound to support a clause that respects the provisions of the Racial Discrimination Act.

In relation to retrospectivity, it does take away existing rights. The bill is retrospective. You have only to go to clause 4(2), which says:

The Heritage Protection Act does not authorise the Minister to take any action after the commencement of this Act in relation to an application (whether made before or after the commencement of this Act) . . .

So this bill reaches back in time. Frankly, we have supported retrospective legislation in the past in terms of its effect. But let the government know that that is what they are doing. They are taking away existing rights and they can only do it in a retrospective fashion. So the minister's advice does not add up in relation to that because it is retrospective in effect. That is the only reason that you are bringing the bill—that there is an existing application that you say is a legitimate application.

As a result of the High Court's decision in Wilson's case, as a result of the recent Federal Court decisions, this whole thing could be resolved without any doubt whatsoever by the minister using someone within the Attorney-General's Department. He has got the advice from Father Frank Brennan in relation to this. He can pick up all the existing material that was picked up by Justice Mathews and that he now has. It is all publicly available material. They could go through the motions and this could be resolved within a month. They could allow a reporting date of 14 days after further submissions are received.

The High Court in Wilson's case says quite emphatically in that joint judgment that the reporter is not expressly required to hold a hearing. What I am saying to you is: this is a quicker, neater and cleaner solution. We do not need to say, `I'll drop my legal opinion, you drop your legal opinion, which lawyer is better.' Here, there is cross-party support now and a concession. Fact No. 1, indisputable: no protection order exists.

Your government solicitors were in the Federal Court recently in relation to Boobera Lagoon. In the matter of Boobera Lagoon, there is a positive report, a report that says a desecration is occurring—a desecration being the skiing on the lagoon. The desecration in this instance would be the building of the bridge, but there is no positive report in existence.

This is what happened in the Federal Court before Justice Foster. The legal advisers took it before Justice Foster on 17 October. Who was there? The Australian Government Solicitor for the respondents. This is what Justice Foster says:

The Lagoon is claimed by the applicant, Toomelah Boggabilla Local Aboriginal Land Council ("the Land Council"), to be a "significant Aboriginal area" within the meaning of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984. The Land Council also claims that the use of the Lagoon for the purpose of water-skiing threatens it with serious injury or desecration within the meaning of the Act.

Further on:

In accordance with s 10(1)(c) of the Act, the Minister has received a report from Mr Hal Wootten QC dealing with the matters referred to in s 10(4). The report has recommended the making of a declaration, inter alia, for the banning of water-skiing on the lagoon for a period of 10 years from 1 May 1996. This report was received by the Minister on 20 April 1996. The Minister, however, has not yet made a decision in relation to the Land Council's application. That failure to make such a decision is the subject of application in these proceedings for appropriate relief.

A further application was made to the Minister under s 9 for an emergency declaration as defined in that section.

. . . . . . . . .

That application was refused by the Minister on 14 October 1996. That refusal is also the subject of an application for review in these proceedings, it being asserted that there was no rational basis for the refusal, and that the decision was vitiated by error of law.

The aspect of the proceedings that comes before the Court today is a claim by the Land Council for interlocutory relief pending the determination of the proceedings.

Further on:

There is, however, a necessary threshold question in this aspect of the proceeding, namely, whether the Court has power to make such an order.

. . . . . . . . .

Section 9 of the Act was considered by Lockhart J in Wamba Wamba Local Aboriginal Land Council & Anor v Minister Administering the Aboriginal and Torres Strait Island Islander Heritage Protection Act. . .

. . . . . . . . .

. . . the power conferred upon the Minister by s 9(1) to make an emergency declaration was facultative and not imperative. I respectfully agree with this construction of the section.

In other words, it was a discretion that he had—`may'. Further on:

In this context his Honour remarked (at 250):

"It is not for this Court to enter into the merits of the dispute between the parties. The juridical function is to ensure that any actions of the first respondent which may be contrary to law (including any failure to observe the rules of natural justice) are corrected. In my opinion it has not been shown that the first respondent acted contrary to law or failed to observe the rules of natural justice or that this Court is otherwise entitled to intervene in this matter."

It is, in my view—

this is Justice Foster—

quite clear that the Court, at a final hearing in these proceedings, would have no power to order the Minister to make a declaration under s 9(1). It could only set aside a decision making or refusing a declaration and then remit the matter to the Minister for a fresh decision in accordance with the law. In this regard it must be borne in mind that the Minister may, in his discretion, refrain from making a declaration even though he is satisfied as to the matters referred to in social security 9(1)(b)(i) and (ii).

Is it possible, then, for the Court at an interlocutory level to order the Minister to make the declaration sought in these proceedings?

He goes on:

The operation of s 23 of the Federal Court of Australia Act was considered in Minister for Immigration Local Government and Ethnic Affairs v Mailanga.

Further on there is this quote:

Even in relation to such matters, the power is restricted to the making of the "kinds" of orders, whether final or interlocutory, are capable of properly being seen as "appropriate" to be made by the Federal Court in the exercise of its jurisdiction.

At page 179 Beaumont J said further, in relation to the section and its operation, that:

. . . the stream cannot rise higher than its source.

Further on:

. . . as a matter power or jurisdiction, if release can be ordered at the final hearing, it must also be within the court's competence to make such an order at the interim stage, if this is otherwise appropriate.

In my view, having regard to these observations, s 23 cannot, in the present case, empower me to make an order at an interlocutory stage which could not, for the reasons given in Wamba Wamba, be made at a final hearing.

Similarly, s 16(1)(d) of the ADJR Act cannot have this effect.

. . . . . . . . .

Accordingly, I am satisfied that I do not have the power to make the order sought. This must result in the decision that I dismiss this aspect of the application and I so order.

In other words, this government is currently involved in legal proceedings where there is a positive report under the heritage protection act in relation to Boobera Lagoon and indigenous people are powerless to force the minister to exercise his discretion in favour of protection of the lagoon.

The same principles apply. Why? Because on all the law, on any proper reading of the act, on any proper construction of the act, in Justice Mathews's report at page 12 it says that the minister has an absolute discretion, even if there is a positive report. That is why this legislation is unnecessary. All it does is cause further pain, further misery and further suffering to the indigenous community in South Australia. It allows the cheer squad to go out and feel vindicated, but it is not good law.

The same week that this legislation was announced we had the symbol for the 2000 Olympics unveiled and we saw that it incorporates Aboriginal symbols. What sort of message is that? Actions must speak louder than words. We are getting the mea culpa in relation to what is happening on one side of the debate that is occurring at the moment, but on the other side of the debate special legislation is the first port of call for Century Zinc and special legislation is the next port of call for the Hindmarsh Island affair. There are 161 pages of amendments in the bill to amend the 127-page Native Title Act.

The reality is that what is happening here is not necessary. This is a lazy government. It is a lazy minister who does not want to go through the processes. What are they saying? The minister opposite, who has been arguing for ages about the frivolous and vexatious nature of the original application, is now left arguing that it is not frivolous and vexatious and that that is why we need special legislation. You gave it away when you tabled the Mathews report in the Senate. That is why you do not need this legislation. I move:

That all words after "That" be omitted with a view to substituting the following words:

"whilst not declining to give the Bill a second reading, the House is of the opinion that the construction of the Hindmarsh Island bridge can now proceed without further delay and without prejudicing the operation of the Racial Discrimination Act 1975 ".

(Time expired)

Mr DEPUTY SPEAKER (Hon. G.H. Adams) —Is the motion seconded?

Mr Holding —I second the amendment and reserve my right to speak.