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Thursday, 9 December 1993
Page: 4304


Senator ELLISON (5.39 p.m.) —I endorse the comments made by Senator Chamarette in her press release on the proposed Senate select committee of inquiry into the Native Title Bill 1993, which states:

It remains a travesty that the Government wants this crucial bill pushed through into law without being better understood—not just by those debating the bill in parliament, but by those whom it most deeply affects.

That is a compelling statement which I am reinforced in supporting by my experience in the last eight days as a member of the Standing Committee on Legal and Constitutional Affairs.

  I know that the Leader of the Government in the Senate, Senator Gareth Evans, earlier stated that some 200,000 pamphlets had been sent out; that ATSIC had embarked on an information campaign. That is all very well but the proof here is really in the pudding. We have to look at the people to whom that information was addressed. Having carefully considered this matter, I am of the view that a substantial percentage of the Aboriginal population do not have a clue about Mabo and not one jot of an idea about the Native Title Bill. For that reason, the coalition senators included in the appendix to their report a summary of the witnesses who asked for more time for consideration.

  If we cast an eye over that list we see that a good many of those witnesses are Aboriginal. In fact there were additional witnesses from the Northern Territory who were left off that list, and I apologise to them for that oversight. For the record there was a Mr Rose, from the Australian National University; Mr Thomas, who designed the Aboriginal flag; Marshall Perron, the Chief Minister for the Northern Territory; the Northern Territory Chamber of Mines; Bishop Appleby, the Anglican Bishop of the Northern Territory; Mr Lawford, from the Airspace Committee; and a Mr Back, who represented the Northern Territory Cattlemen's Association.

  The list includes in excess of 60 people from a variety of backgrounds who thought that there should be more time for consideration. That patently illustrates the fact that no matter how many pamphlets Senator Evans says were sent out, no matter what campaign ATSIC embarked upon, the campaign was not successful because, clearly, the message did not get across.

  Mr Ron Caston QC, who represented Eddie Mabo in the historic native title case, stated in his evidence that a royal commission—styled along the lines of the Woodward royal commission—would have been the appropriate course of action. I endorse that comment. However, in fairness to Mr Caston, I point out that he also said that time had slipped by and that it was now too late for such action. He also supported the idea of the bill being passed by Christmas.

  Mr Caston was quite right in his comments about instituting a royal commission. Really, the blame for the sorry situation in which we find ourselves today lies at the door of the government. When the Mabo decision was handed down by the High Court in June of last year, that was the time to have ordered a royal commission.

  I take issue with the comments made by Senator Kernot and Senator Evans about the government embarking upon a consultative process. I dispute that there has been any sort of consultative process over the last 18 months. It has only been in the last six months that this question has been addressed at all.

  I ask those who say that there was consultation—I remember that Father Brennan said that there had been negotiations last year—to look back to the March federal election campaign and point out where this issue was raised in the press. No-one in this parliament could say that it was raised as an election issue because it was not. There was no consultation; there was no negotiation. This matter has only been raised in the last six months.

  This is one of the greatest issues to affect Australia in the post-war period, yet a Senate standing committee was given not quite two weeks within which to travel around the countryside and report to this parliament. The four days of hearings were fruitful to some extent because the hearings highlighted the concerns people have about this bill. As best as they possibly could, the coalition senators annexed those concerns to appendix 1 to their report. Some 150 amendments were put forward by interested parties, from mining groups to Aboriginal groups.

  The concerns that the coalition senators have about this bill can be seen in the body of the report. Despite their concerns, the government insists on railroading this bill through the parliament. Despite the proposed amendments, the government insists that this bill be passed in order to avoid any further division within the community and to avoid any injustice in Western Australia. To address the government's attitude, I point out, firstly, that the conduct of this committee convincingly demonstrated that a Senate select committee could operate quite properly without creating a division. I entirely dispute the comments made by the former senator, Fred Chaney, that such a senate committee would be a Trojan Horse for prejudice. I say that because of the manner in which the inquiry was conducted.

  We saw miners, Aboriginal groups, pastoralists, all sitting at the same table. There was no acrimony between them although evidence was given in a most forthright fashion. It made me proud to be an Australian to see such a democratic process being carried out without rancour and without the violence we sometimes see in foreign countries. I therefore congratulate my colleagues on that committee, the staff who supported us and the people who participated in the inquiry. It was a credit to the country that opposing views could be put with such rational debate and with such rational propositions.

  I therefore say to those people who believe that a Senate select committee would result in division and the problems that some say took place in the mid-1980s that they are wrong. This is 1993, and a different feeling is abroad in Australia. I was impressed by the way in which people with such differing views could sit side by side and discuss the matter. From the appendix to our report it is clear that opposing views can be rationally put. The whole process demonstrated that a Senate select committee could conduct a rational inquiry.

  If we are successful in getting a select committee to examine this matter, I would like to see one of the Green senators on it. With both Green senators coming from Western Australia, they have a particular view to represent, and I believe that it should be put. I would wholeheartedly support one of them being appointed to sit on that committee.

  The reason for referring this matter to a Senate select committee is that there are problems with the bill. Any problems that people might have with the Western Australian legislation are best dealt with by the High Court, and I understand that a challenge to that legislation has been lodged there already. However, simply because some people think that the Western Australian legislation is flawed and should be challenged, that does not mean that we should rush in and wholeheartedly embrace federal legislation which could be fatally flawed constitutionally with national repercussions ensuing.

  The first problem that I see with this bill relates to the constitutional provisions. Professor Colin Howard and S.E.K. Hulme, two outstanding constitutional lawyers, have commented that there are constitutional flaws in this bill which could render invalid any subsequent legislation. If that is so, the repercussions would be catastrophic not only for the land management systems in this country but also for the people whom this bill sets out to help. One can imagine payments of compensation and grants being made under this legislation which might have to be revoked as a result of invalid legislation. And where would that leave us? It would put this country in a state of great division. We would certainly see Australia torn to pieces on social and racial grounds.

  Even the Aboriginal witnesses who appeared at the committee expressed many concerns. Their first concern was the vesting of native title in a corporation—clause 53 says that this can be done—against the wishes of individual native titleholders. That is completely abhorrent. Senator Spindler quite correctly picked up on that in some of his amendments. In fact, Senator Spindler, who was on the committee, has some wide-ranging amendments and I imagine that it would be difficult for him to support the bill unless those amendments were incorporated.

  The other Aboriginal concerns are in relation to the overriding of the Racial Discrimination Act. In our report we have outlined two areas where we believe the Racial Discrimination Act has been overborne. The Commonwealth can do that because this is a piece of legislation occurring later in time, but that was not the intent of this legislation, as I understand it.

  Furthermore, there have been concerns from industrial groups. I note that under the heading of the mining industry we have listed the concerns of the mining industry. We have listed the concerns of the pastoral and agricultural industries, the flaw in the definition of past acts and the misunderstanding of how pastoral leases work in Queensland and Western Australia—the fact that they would have to be reissued and that the process would have to be gone through in the future. Whether that is a desirable thing or not is for debate.

  What this bill says and what the government says is that there is not a problem and that this is not the case. The government is misrepresenting what the relevant clauses in this bill say. Quite unexpectedly the fishing industry raised some legitimate concerns and that was with the artificial definition of onshore. One would expect, when using the normal English language as we understand it, that onshore means on the land. Pursuant to this bill the word `onshore' would cover bays, estuaries, inlets and other waters within state jurisdiction. As a result of that, we have anomalies arising from the aquiculture in the north-west of Australia and the pearling industry. There were also grave concerns expressed by the fishing industry in the Northern Territory.

  A good many of the amendments annexed to this report are from Aboriginal groups. The coalition group in the Northern Territory, I think, would be responsible for a great many of them. I have also received suggested amendments from the Northern Territory government. Those amendments are at their respective ends of the spectrum, as one could understand. Nonetheless, they need to be entertained, they need to be aired, they need to be discussed and they need to be debated. But unfortunately, with the rushing through of this bill, that will just not happen.

  Really what we are seeing here is a destruction of the democratic process. The coalition has already made its position on the Mabo decision quite clear. The Mabo decision is accepted. Native title has been decided by the High Court and it has been accepted that operation of the Racial Discrimination Act is entirely appropriate and should continue to have application. Having said that, I take great issue with those people who say that the opposition's agenda is to delay the matter so that this bill will crumble and fall aside. I say to people who say that: if we really had the intention to do that I would be on the government side applauding this bill and pushing it through, because it is the biggest legislative joke I have ever seen. It will crumble. It will fail. And if I really did want to mess up the system, if I really did want to be mischievous, I would be on that side of the chamber supporting this bill. It is going to fail and I bet London to a brick that when it gets to the High Court it will do so. We as senators have a responsibility to pass good legislation—good at law—which is valid, which will be upheld and which abides by the constitution of this country. In relation to this bill, there are too many queries as to its validity.

  I cannot accept the criticism of the coalition, that it is our design—our nefarious design—to delay things so that we might derail and destabilise this Native Title Bill or at least the sentiments behind it, more importantly. We have a High Court decision and it has to be acted upon. We cannot just pretend that it is going to go away. We cannot hide it under the carpet. The High Court has made a decision and we need to respond to it in an appropriate fashion.

  So I put to those detractors that no matter what happens there has to be a response. At the end of the day we cannot leave it without a response. We owe it to the people of this country to find a legislative response. The Western Australian government has taken what it sees as its legislative response. Perhaps if this government had acted more responsibly the Western Australian government would not have been cornered as it was by the federal action. To the people who criticise the Western Australian legislation, I say this: look at it carefully and see exactly what that legislation does, because that legislation will, of course, be under scrutiny just as this legislation is.

  There is perhaps a difference here and that is that the Commonwealth government has maintained the high moral ground in saying that it has the answer to the Mabo decision; that it knows the answers. It said that it is contained in this Native Title Bill. Well, it just is not, and that is the thrust of my submission to the Senate today. If it were a proper response, we would not be having this debate here today. If there had been proper consultation, we would not be here today.

  But whilst a large percentage of the population and the Aboriginal community remains in a vacuum as to whether this is a good bill or a bad bill or as to what Mabo actually means for them then I believe we just cannot pass such legislation without full inquiry. I believe that the Senate Standing Committee on Legal and Constitutional Affairs has made an adequate start for any Senate select committee, which could be a foundation on which to build an inquiry. As Senator Evans said, it might have only several weeks but at least the lion's share of the work has been undertaken in the legal sense by the Senate Standing Committee on Legal and Constitutional Affairs. I believe the select committee could take it from there and come back with adequate recommendations at the next sittings in the new year.