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Wednesday, 15 December 1993
Page: 4657


Senator ELLISON (1.24 p.m.) —At the outset, I will quote from the evidence given by Ms George before the Senate Standing Committee on Legal and Constitutional Affairs in Perth on Friday, 3 December 1993. I might say that Ms George is a woman who has worked for the Aboriginal community in Western Australia and is a woman of Aboriginal descent. At the end of her evidence, she stated:

Over the years Aboriginal people, especially the older generation, my mother's generation, have been subjected to the full range of inhumane treatment referred to in the bill as dispossession and the injustices of the past. Those injustices include direct knowledge in their lifetime of massacres, murders, exploitation of labour, dispossession, rape, the exploitation of women and the ripping apart of families. However, the only way in which the marginalisation of Aboriginal people can be turned around, in my opinion, is if we become participants—not passive, powerless victims becoming increasingly dependent on welfare, and I must say that it pains me to see the state in which most Aboriginal people continue to live in this state, notwithstanding huge injections of government funding.

Since the founding of this continent in 1788, the history of this country has been largely one of hardship and endurance. In that process, the record of treatment of Australia's indigenous people has not been an enviable one, and I do not shy away from that for one instant.

  Despite these historical aspects, Australia as a country has achieved much and offers great opportunity for its inhabitants. It is with this in mind that I say that the Mabo decision is one of the most significant decisions made by the High Court since Federation. The coalition has stated that it acknowledges the High Court decision and the relevant definition of native title. The coalition is of the view that the Racial Discrimination Act is of ongoing application and should be followed. The coalition is also of the view that the constitution of this country should be followed without exception. Therefore, it is within that framework that we look at this legislation.

  The government states that this Native Title Bill purports to provide a legislative response to the High Court's decision in Mabo No. 2. In the process of doing this, the government maintains that it has acted to protect the rights of all its citizens. Let us look firstly at the efficacy and constitutionality of this bill. If the bill is to achieve either of the purposes stated by the government, it firstly must be constitutional. This bill is of no use to anyone if it is bad at law. I dismiss entirely any suggestion that I am taking too legalistic a view in starting with this premise. The legislation must also be competent; it must achieve what it sets out to do. The efficacy of any legislation is the primary responsibility of the legislators, and we, being a house of review, bear that responsibility even more.

  During the inquiry of the Senate Standing Committee on Legal and Constitutional Affairs, of which I was a member, concerns were expressed that the Commonwealth could not exercise its powers pursuant to subsection 51(xxvi), being the one dealing with race laws, and 51(xxix), dealing with the external affairs power, to the exclusion of the state's absolute jurisdiction to involve itself in land management. In 1901, when this Federation was formed, the states ceded power to the Commonwealth, but one of the powers they did not cede was that of land management.

  Specific powers upon which the Commonwealth exercises its authority can be found in section 51 of the constitution, and so the Commonwealth sets out to rely on those two powers I have mentioned. There was a good deal of concern expressed that it could use those powers to prevail over that exclusive jurisdiction of the states on land management. Furthermore, the Commonwealth would need to justify in clause 11 the retrospective enforcement over the states of an indefinite doctrine of common law. The bill also purports to place an undue financial burden on the states, and I refer to clause 203, which could be seen as infringing the rule in the boilermakers case.

  I have touched briefly on those constitutional concerns. I will leave it there because other speakers will deal with them. However, honourable senators must remember that not one Aboriginal will be helped, not one Australian will be helped, if a bad law is passed. Not one citizen of this country will be helped if the law is incompetent and does not achieve what it sets out to do. I ask honourable senators to remember that. I place those remarks on the record, and history will prove me right. I will not hesitate for one moment to remind this chamber of my comments today.

  The other matters dealt with by the Senate Standing Committee on Legal and Constitutional Affairs were concerns involving the Aboriginal people of this country. In our dissenting report, appendix 2, some 50 witnesses are listed—if one includes the witnesses from the Northern Territory who were unfortunately omitted—who stated that further time was needed for consultation and consideration of this bill. The majority of those witnesses listed in appendix 2 were representatives of Aboriginal communities, and they all asked for more time.

  The concerns expressed covered a wide spectrum. They ranged from the fact that the Racial Discrimination Act was being overborne by this bill—and I share that concern—to the fact that native title was not vested in the Aboriginal native titleholders, as Mabo No. 2 said it should be, but was vested in a prescribed corporate body. That could be done without the consent of the native titleholder. There are no checks and balances in the bill in relation to those prescribed corporate bodies. That was also of concern to some witnesses who appeared before the committee.

  During that hearing I questioned David Ross, from the Central Land Council of the Northern Territory, about whether there had been any improvement in the lot of Aborigines in the Northern Territory as a result of the Aboriginal land rights legislation brought in by the Fraser government in the late 1970s. His answer was that, socially, there had been no improvement. Unfortunately, Aborigines are still drinking themselves to death on the outskirts of townships and communities. I refer to the comments from Ms George which I read at the outset. Huge injections of money will not solve any problem, especially the complex problem associated with the process of reconciliation or native title. We have to have a piece of legislation which accommodates the rights and interests of indigenous people as this country moves into the next millennium.

  We have to look at other aspects of the bill as well. I say unreservedly, and I think the government agrees, that this bill will have more effect on my state of Western Australia than on any other state or territory. Western Australia has the third highest population of Aboriginal people of all states and territories. Some 76 per cent of all pastoral leases are in Western Australia. Some 36 per cent of Western Australia is vacant crown land. The mining industry in Western Australia contributes 15 cent of the total income of this country. So Western Australia, with its mix of farmers, miners, Aborigines and vacant crown land, has the greatest potential under this bill for claims, for conflict, and for litigation to occur under this bill.

  Bearing that in mind, we have to look at this vast continent on a state by state or regional basis. Considerations that apply to a factory worker in Dandenong in Victoria cannot be applied to someone who lives in the remote area of the north-west of Australia. I asked David Ross from the Central Land Council whether he was saying that considerations for Aboriginal people in other states might be different from considerations for Aboriginal people in the Northern Territory. He replied:

Yes. I do not think it would be appropriate. You have got to remember that Aboriginal people here on the east coast and throughout the southern areas of Australia have been colonised for the 206 years that colonisation has taken place. Throughout the north, it has probably been for much less. So you have the differences there in Aboriginal people still being a lot more culture oriented, whereas the people in other areas have been stripped of a lot of that because of the welfare mentality that existed. We all grew up under different rules and regulations and so we have to survive under different ways, and that is just the way things are.

That was a very perceptive comment from Mr Ross, because the considerations that apply to Aboriginals in the Kimberley and the Pilbara in the north-west corner of this continent are very different from those that apply to Aboriginals living in Redfern, Sydney. At the moment, 16 per cent of Western Australia is subject to a Mabo-style claim, and it appears that there are more claims to follow. So the question of native title in Western Australia is very much a live issue.

  I note that the National Farmers Federation did not take into account the effect this bill would have on pastoral leases in Western Australia in particular. I believe that in Western Australia future acts, as described under this bill, will provide problems for the renewal of pastoral leases. All pastoral leases have to be renewed by the year 2015 in Western Australia. The fishing industry in Western Australia, notably pearling and aquaculture, could face problems of access to their beds and waterways as a result of the artificial definition in the bill of the difference between onshore and offshore areas.

  As a result of this move by the Commonwealth, the Western Australian government moved to legislate for Western Australia, and we now have enacted the Land (Titles and Traditional Usage) Bill 1993. With regard to comments that have been made in relation to that bill, I refer to Senator Chris Evans's comments that the bill was not ratified or upheld by any independent legal opinion and that there had been a Law Society committee opinion to the effect that it conferred lesser rights and was incompetent law. I point out to the chamber that the three members of that committee, Ian Viner QC, Stephen Churches and Michael Barker, are lawyers who have been involved in the Aboriginal cause. For years Ian Viner has stood by his introduction, when he was a minister, of the Aboriginal land rights legislation in the Northern Territory. Stephen Churches has acted for Aboriginal plaintiffs in the Utemorrah claim, and Michael Barker has already made known his philosophical criticism of the Western Australian legislation. I merely place that on record because, if Senator Chris Evans is to rely on that legal advice as being independent, it is important that this chamber know the details I have just summarised.

  Senator Spindler mentioned that numerous grants were going ahead in Western Australia as a result of the enactment of the legislation. My inquiries of the Crown Law Department have revealed that in that state the Crown grants are being processed in the number and in the normal manner the department would be using in any other circumstance. In fact, when Mr Morland, from the Department of Land Administration of Western Australia, appeared before the Senate committee, he stated that there were no plans to flood the system with land grants in order to extinguish native title. Whilst I am on the Western Australian legislation, it was Father Frank Brennan who said that he thought that piece of legislation would not be ruled invalid by virtue of the Racial Discrimination Act and that its compensation scheme would, to use his expression, `pass muster'.

  I have traversed a good deal of ground. Before closing, I wish to touch on just one more matter, which is of economic importance. This bill has to be a balance of interests and rights. I do not wish to place any undue emphasis on economic matters at the expense of others. I say this merely to balance the ledger. Fifteen per cent of Australia's total exports come from mining in Western Australia. Mining in Western Australia is not just a parochial concern; it is one that has substantial ramifications for the nation's economy. In fact, the export earnings for the mining industry in Australia in 1992-93 came to a total of $16 billion, or 26 per cent of the total income of this country. That is a feature that cannot be ignored.

  We have had figures bandied around today to show that funding for Aboriginals and Torres Strait Islanders is in the region of $1.3 billion to $2 billion. What we have to recognise is that, if the money is not earned, a government cannot bestow adequate services on its citizens. We cannot for one moment deny the economic considerations. Just this week the mining company CRA stated that it is going to increase its overseas exploration by 50 per cent as a result of this bill. As a result of this bill, the mining industry could face delays of up to 18 months for approval of any developments. Any future acts involving mining have to go through a native title determination process, followed by compensation.

  At the outset I mentioned that this legislation should be competent. To be competent, it has to offer to the citizens of this country a judicial process which is efficient. It is not only the mining industry that is going to suffer by these delays, but also any native title claimants. They could well be tied up in courts and tribunals for that period. In Western Australia last year, 5,702 mining applications were processed. If there are going to be the attendant delays with those applications, we will be looking at a situation of chaos and great expense to the taxpayer.

  There was a recommendation by the coalition that this bill be referred for further consideration. That, unfortunately, was defeated. I believe that further consideration could have improved—in fact, revised entirely—the operation of this bill, which I see as incompetent and bad at law. I believe that it offers no-one in this country anything and, if implemented, it will only involve the judicial system in chaos.

  I note that the government has seen fit to put forward 74 amendments, which it says come from the majority report of the Senate Standing Committee on Legal and Constitutional Affairs. When I read the majority report I am afraid I could see only four recommendations. I could not see where the 74 came from. I will tell honourable senators where they came from. They came from recommendations in the minority report. We annexed in appendix 1 some 150 amendments from Aboriginal groups and the mining industry. We put them forward to show the people of Australia just what concerns there were out there with this bill. People who support a headlong rush to pass this bill are short-sighted and will one day rue that enthusiasm. They will rue the fact that in the first instance we did not get it right.