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Wednesday, 15 December 1993
Page: 4724


Senator COONEY (7.01 p.m.) —On the basis of the decision in Mabo No.2, a number of Australian citizens have, where the necessary confluence of facts occurs, vested rights in particular land. To deny that is to be radical and revolutionary because the High Court has judged that to be the case. It has been said again and again during the day that the High Court decision is final in this matter and binds us.

  The point that must be made again and again is that, because of the Mabo decision, people may have vested rights in land. Whatever is done about that affects their rights in that land. This is not a matter where we say, `Look, the court has made a decision. It's not a bad sort of a day today. After all, we've got to feel generous towards a certain group of people; therefore, we'll give them the rights that we feel they ought to be given—not the rights that are declared by the High Court and not the rights that six of the seven judges so solemnly pronounced that they had, but some rights that we will determine in some way they should have'. That is a very dangerous, radical and revolutionary approach to take to the established structures under which we live. The constitution that contains those sacred institutions must not be violated in the way that has been referred to today.

  Having said that, I want to make some further points. Australian mining companies have a good case for being given security of title over the sites in which they are working. Pastoralists have a good case for being given safe tenure over their holdings. Fishing interests have a good case for being guaranteed access to relevant waters. The forestry industry has a good case for having its due entitlement protected.

   Those Aboriginal Australians—all of whom must, by dint of the judgment of the High Court have Aboriginal ancestry—who have title to the land under the Mabo decision have a good case for that to be preserved. All those groups of people I have mentioned have rights, but if all exercised those rights to their utmost limit there would be awful tension. So, as everybody has concluded, there has to be legislation to overcome that.

  It is said that the legislation fails to be perfect. That is absolutely true. Of course it fails to be perfect. It cannot be perfect, given the number of rights that people of different groups allege and assert they have over the same piece of land. That is what this legislation does. Amendments are proposed to the legislation by the government itself, by the Democrats and by the Greens but, as I understand it, none are proposed by the coalition because it says that there should be no legislation at all of this sort.

  All the great goals in football are kicked from the spectators' side of the fence. The same goes for all the great sixes that are hit in cricket. It is only when we get onto the field and enter the play that we can make a contribution. Unfortunately, the coalition has not done that as yet, although while this debate is still going there is plenty of opportunity for those on the other side to do it. The opposition has made many points which are valid and true.

   Mr Acting Deputy President, may I quote a couple of lines by Banquo? You used, perhaps, at times to consider him when you were reading your Shakespeare. There are a couple of good lines, and they go this way:

And oftentimes to win us to our harm,

The instruments of darkness tell us truths;

As I have listened to the debate on this matter—and it has been a very good debate—those lines have come to me. A lot of truths have been put forward in debate over the last couple of days, but the conclusions that have been drawn from them are flawed. In the pursuit of perfection, perhaps, the good that might be otherwise done in legislation such as the government has put forward is lost, and lost tragically.

  Any issue over land is going to raise problems and generate high emotion. That has been the case with the land law that we enjoy, which has come from the land law of England, with all the sorts of different rights that were enjoyed in that land. The history of that land law has been full of strife and stress. Even in Australia, there were the fights between the emancipists and the exclusivists and the difference between the view Commissioner Bigge took in his attitude to the emancipists and the view taken by Lachlan Macquarie is an example. The fight between selectors and squatters was much the same. But people went ahead and legislated. The famous Charles Gavan Duffy, from the country you used to grace, Mr Acting Deputy President, passed the laws in Victoria in the 1860s which led to the settlement of the problems down there. Some sort of action had to be taken, and he took good action.

  The same thing has been done here with the Mabo legislation. It is a not a unique incident in the history of land law. It is in many ways typical of what happened before Mabo. It was not until 1677, I think—certainly Senator Vanstone will help me here—with the enactment of the Statute of Frauds that the conveyance of land had to be in writing. In the centuries before, not enough people were literate to put the transactions involving land into writing. So it was in a general way the same sort of system that operated, as far as we can gather, amongst the Aboriginals before 1788. In other words, the common law, in picking up native title, is picking up something that is not as unique and as strange as people might think.

  Like everybody else, I could say a lot more but I want to conclude by saying this: this legislation has been brought forward because it needs to be brought forward and needs to be brought forward expeditiously. People, whether they are miners or pastoralists, want certainty of title. Australian citizens of Aboriginal background, who have a claim under Mabo to land, want that matter resolved as soon as possible. I would have thought that this legislation could have been used as a basis for such amendments as people might want to make and can agree upon. But simply to throw it out holus-bolus without even having an alternative to put in its place is a stance which cannot be helpful at this time in the development of our land law. It is important that this legislation go through with the proper amendments.