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Thursday, 9 December 1993
Page: 4291

Senator VANSTONE (4.30 p.m.) —I understood there was an informal agreement to stick to 10 minutes per speech, but I notice the government has not kept to that and the Democrats found it impossible to do so. I will try to do so. Since it is obviously a pretty loose agreement, I will say what I want to say but as briefly as possible. As a member of the Senate Standing Committee on Legal and Constitutional Affairs, I obviously participated in the very rushed three-day hearings—three and a half if we count some of the hearings here in Canberra—that we were able to have on the Native Title Bill. We accepted the reference of the bill to that committee because it was clear at that stage that we were not going to get agreement for a wider reference to a standing committee or a select committee.

Senator Knowles —Was it clear?

Senator VANSTONE —I thought it was, yes. In any event, we had the task to do. I agree with Senator Gareth Evans that committee members all worked as hard as they could and have done as much justice to this job as they possibly could in the time that was given.

  I want to make a few remarks with respect to what some of the earlier speakers have said. I was somewhat amazed to see Senator Evans, with his silver tongue, come in here and try to cover up the sham of negotiations that have gone on with respect to this bill. That is the key thing that we are discussing—not all the negotiations and discussions that have taken place since Mabo No. 2 or the preliminary discussions. I do not deny that those sorts of discussions have been going on pretty well since the Mabo No. 2 case was handed down by the High Court, but that is not what we are discussing. We are not discussing the Mabo No. 2 case; we are discussing the Native Title Bill, which has been available for only a number of weeks. That is the key distinction that I think needs to be made.

  Senator Evans says that any delay to give further consideration to this bill will allow people to beat the racist drum. I thought that was the pot calling the kettle black. Senator Evans and some other people on his side—sometimes picked up by the chair, other times not; I am not looking at you, Mr Acting Deputy President, implying that you are a culprit in that respect simply because you happen to be in the chair—have been waving the racist rattle as hard as they can in trying to say that, if anybody on this side or anywhere else happened to disagree with the government's response to Mabo No. 2, if they thought there was a different way to go, they must be a racist. This is despite the fact that the people who think there might be another way to go or who have disagreements with the Native Title Bill may be people who fully acknowledge the High Court's decision and support it.

  The political correctness that has seeped into this place and into the media—the notion that if one does not agree with the line of the day one is a bad person and has to be painted as so—has come from Senator Evans. I found it a bit rich that he should come in here to talk about any delay allowing people to beat the racist drum when, as I say, he is the greatest rattler of the racist rattle in this place. He is great at making those sorts of allegations, insinuations and inferences about people simply because they have a different view about the appropriate way to respond. I was somewhat amazed about that.

  Senator Evans, with his silver tongue, has sought to portray the negotiations that have taken place with respect to this matter as being amicable. What short memories we have. I remember the press coverage of the COAG meeting in Melbourne at which the Premiers were basically told, `You take it our way, like it or lump it'. The Prime Minister (Mr Keating) tried his quite usual and frequent New South Wales Right of the Labor Party bullyboy tactics and roundly told the Premiers of the states where they could go if they did not happen to like his proposal. I find it unusual that Senator Evans would come in here and say, `This has all been very amicable; everybody has been participating and cooperating'. That is simply not true. Those whom this government has been able to push down—I think that was the Prime Minister's term—

Senator Ferguson —Knock `em down.

Senator Ian Macdonald —Knock them down.

Senator VANSTONE —Those whom the government has been able to knock down in this process have been knocked down. If that is the tactic, that is fine, but it is not appropriate for government members to come in here and portray the negotiations as being amicable and friendly.

  Ron Castan QC, who was in fact counsel on this matter and has a longstanding interest in and understanding of the Mabo matter and land rights issues in general, made it quite clear that he thought the appropriate response would have been and should have been to have had some sort of full inquiry and royal commission into the appropriate response to Mabo No. 2. In other words, he said that the better thing would have been to have had a royal commission—not to have had the government signing a process, putting it into a bill, shoving it in and having a debate. He said that that regrettably is the situation we are in. Of course, I freely admit—

Senator Chris Evans —Quote him correctly.

Senator VANSTONE —If Senator Evans wants his turn, he should wait for it; otherwise he will get interjected on and he will not be able to speak either. It is the typical tactic of those opposite. I am surprised he does not come from New South Wales, because he is a bullyboy too and he interrupts all the time. He does it in committees as well. He has not learnt any manners about Senate committees yet, but he will with a bit of time. When he gets a bit of wetness off from behind the ears he will be right.

  Mr Castan QC said that we were regrettably now in the position where this matter had been so politicised it had to be dealt with promptly. He said that on that basis he would support the view of the Democrats and the government that this bill should be passed immediately, not because he thinks that would have been the best way to go but because that is what has happened.

  Senator Evans, as I say, made comments about the consultations that have taken place. He was not there at the hearings; I was. One of the Democrat senators was there. The Greens were there on the odd occasion—I think they made an effort to have a staffer there all the time—and certainly heard that a divergence of views still exists within the Aboriginal community.

  Senator Kernot may be right with respect to the people who are elected to ATSIC. I note she does not comment on those who get their positions by appointments. Nonetheless, there is dissatisfaction, misunderstanding and, in some sections of the Aboriginal community, complete ignorance as to the government's response to Mabo. People came along and said, `We're not asking you to pass this bill. We are not asking you to reject it. We are just asking you to wait until we can find something out about it. We are not informed'. The position that was yet again being put to us—I think, with respect, Senator Kernot portrays this position—was, `You people think you know best about what is good for us. Why don't you just give us a go, give us a bit of time to understand what it is that you want to do, the way the government wants to respond to this'. We cannot deny the evidence that is there.

  Senator Evans said the committee heard witnesses over four days in four cities. Big deal! Four days with 149 witnesses works out at about nine minutes each. On one of the most important issues to be debated we were to say to someone, `You have nine minutes. You can either speak for that nine minutes or you can speak for two or three minutes and then be asked some questions'. We had 10 or 12 people up at the table at any one time. Very few people got an opportunity to put their view uninterrupted by others and very few got an opportunity to have their view tested and some interest shown in it by way of questions. The consultations simply have not been adequate.

  I turn momentarily to the Greens. The Greens have said that they are concerned about this matter being dealt with without proper consultation. I take Senator Hill's point: they have it in their power to stop that happening. I was concerned when I saw their press release. I thought, `That is good. The Greens understand that it is an indictment of our political and parliamentary system if there is not a thorough review of this legislation'. I got down to the bottom of the release and found that they are basically saying, if I understand the position of Senator Margetts and Senator Chamarette, that there might not have been proper consultation, that the bill might not be in a proper form and that there are lots of people concerned about it. But down at the bottom do they not really say, `But guess what: if you agree to what we want, we will let it through anyway'? I would be grateful if next week, when we debate this bill, they could give an indication of the extent to which they are happy to be concerned about other people's concerns and not just their own. I would be very grateful to hear that in their speeches.

  As to the dissenting report—it is very simple—the first point we make is: get it right the first time. Mr Acting Deputy President, you are a member of the Senate Standing Committee on Legal and Constitutional Affairs. You will have read the report checks and imbalances. You will understand that that report says that one of the contributions to the high cost of justice in this country is the fact that we do not do our job properly. We pass legislation and we get it wrong. So then we have to have another go. That is all very expensive.

  We had to re-do the Bankruptcy Act recently. We had a copyright amending bill recently. Why? Because we got it wrong. We have to amend legislation because the policy considerations have not been as adequate as they should have been. We have to amend legislation because drafting errors have been made—that is another name for incompetence—which we have not picked up in the beginning. We just have not looked for them. We find them later and we think we are big joes because we fix these drafting errors. I think the Deputy Clerk of the House of Representatives has written at some length about the list of bills that one might find at any one time that have been passed through this place but never proclaimed because, after we thought they were okay, someone found out that something was wrong with them so they were never proclaimed.

  There is a wide range of reasons why this happens. I invite honourable senators who served on that committee to take notice of their own report which basically says that the parliamentary system would be greatly improved—I am not talking about the notions behind, in this case, Mabo No. 2, or the considerations and general discussions prior to the bill coming in; but once a bill is established—if the committees were given a proper chance and proper resources and if parliament took the time to get all of the detail right. That is the first point. We say: this is so important, get it right the first time. Do not muck about with it and do it afterwards.

  The government's view is that the fragile consensus will disappear over Christmas. A fragile consensus is a very fragile foundation on which to be building the sort of legislation that we want. In my view, those people who support this type of response should take the time that a review would allow to build a stronger consensus. They should not be so weak-kneed and lily-livered as to simply say that they cannot do any better at building a consensus than has been done thus far. I know you are looking at the clock, Mr Acting Deputy President. I am doing my best. I am not far from finishing.

  At this stage, I think I have covered the fact that the review procedure is completely inadequate. We know that the Selection of Bills Committee is designed to send detailed and complex clauses of bills to standing committees so that outside experts can address them and give us some advice. That procedure is not designed to consider the broad range, broad brush issues at all. We used that procedure because it was the only one available.

  In our dissenting report, honourable senators will see the very long list of amendments that people suggested. We do not say we agree with all of them; but we do say that there is a lot of detailed consideration which has to be responded to. If this is to be debated next week, we look forward to seeing how each of the people who think that this legislation should be shoved through by Christmas will respond to those amendments and what they will have to say about each of them in detail. If the legislation is shoved through, I personally look forward to the debate that will ensue next Christmas when we will have to amend it. I hope the people who have participated in rushing the legislation through will be here when we need to amend it so that I can give them what they richly deserve.

  Another point the government makes—I think the Democrats make it also—is that we have to get this through because we want some certainty in land title management in Australia. There is no certainty coming out of this bill. This is dead set for a High Court challenge. I will not take the time now to list the matters that we, and a number of other people, say are constitutionally doubtful in this bill. But they cover such things as interference with the capacity of the states to carry out their functions.

  Some people say that the bill should be held to be invalid due to vagueness because it is an attempt to take over common law that has not yet been established and, in particular, to do so in relation to section 109. But that is a point for people who are fascinated by constitutional law, so I will leave it at that. There are other concerns in relation to the role of assessors, for example, and whether they are taking on some sort of judicial role. Some detail of that is to be found in our dissenting report. Suffice it to say, there is no certainty coming from this legislation. It is dead set for a High Court challenge.

  Almost last, but not least, it is an extraordinary irony that a large group of Aboriginal people in the community are still saying, as they said to this committee, `You people still think you can say what's best for us without fully listening to us'. I do not deny that representatives of significant portions of the Aboriginal community have been listened to. I do not deny that at all. But I hope those who participate in this debate will also not deny that plenty of people in the Aboriginal community do not think that they have been listened to at all on this matter.

  Last, but not least, there were serious concerns raised by commercial interests. They are dealt with last. I have tried to deal with the substantive ones which I think we should be primarily concerned about now. But let us not forget that there are significant commercial interests to be looked at in this respect. They relate to the mining, pastoral, fishing, tourism and forest industries. These industries provide jobs for non-Aboriginal and Aboriginal Australians. We need to get it right in that respect as well.

  For all of those reasons, we say, `Look, why don't you just take the time and send this to a Senate select committee? Have it properly looked at'. If the goodwill that is there with respect to this bill proceeding in this fashion is genuine—

  Honourable senators interjecting—

Senator VANSTONE —I am trying not to yell, Mr Acting Deputy President.

  The ACTING DEPUTY PRESIDENT (Senator McKiernan)—Order! Can we have some order for the speaker?

Senator VANSTONE —If the goodwill which has greeted Mabo No. 2 is genuine—it may not be so in other responses to Mabo No. 2—it will be present in February to enable us to deal with the bill in a much improved form.