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Friday, 17 December 1993
Page: 5013


Senator HARRADINE (5.22 p.m.) —I find myself in a situation that is probably different from the situation of anybody else in this chamber or any of their expressions of opinion in this first commentary on clause 1 of the Native Title Bill in the committee stage. We are all at one in one aspect: we all acknowledge that this legislation involves deep questions of social justice, equity and certainty before the law. It is the parliament's duty to address these questions against the need, in my view, for reconciliation and healing amongst all peoples of this country. It is also the parliament's duty to do so in the best interests of all Australians in a manner which does not do irreparable harm to the federal compact upon which the constitution is based.

  As we all know, there are a number of possible responses to Mabo No. 2. There is the response that we in this federal parliament do nothing. For example, each claim would go to the courts. Surely that response would fail against some of the principles that I have mentioned, not the least of which is certainty before the law. It should be remembered that Mabo No. 2 was not a unanimous decision.

  The other response is that the matter should be left to the state parliaments. That, too, would fail on equity grounds and probably on certainty before the law grounds because we could well end up with six different statutes dealing with the questions in six different ways. I have always been of the view that land management issues are essentially state issues. I acknowledge that. But we have to look at the other principles and when we consider the other principles we must remember the 1967 amendments to the constitution which were deliberately made to enable the federal parliament to deal with these questions in special circumstances. I believe this is a special circumstance.

  In my view, federal legislation which satisfies the requirements of justice, equity and certainty before the law is necessary. As I indicated before, this needs to be done in the spirit of unity which does not appear to be evident at the moment. I wanted to see this resolved before Christmas and that is one of the reasons I took the action I did three weeks ago. I believed that no good purpose would be served by the matter going to a Senate select committee. As we all know, the legislation did go to the Standing Committee on Legal and Constitutional Affairs. That committee reported to the Senate on 9 December.


Senator Tambling —It went to the committee for only one week, for a limited consideration.


Senator HARRADINE —I understand that. The opposition must acknowledge that there should not be one senator in this place who does not understand the issues involved in Mabo No. 2. Not one of us should stand up and say that he or she does not fully understand the issues involved.


Senator Ian Macdonald —We don't understand the amendments.


Senator HARRADINE —That is one of the issues that I wanted to address. I have not been involved in any of the toing and froing in relation to this legislation.


Senator Ferguson —They reckon they didn't need you, Brian.


Senator HARRADINE —That may be so. I would like to politely challenge what Senator Kernot said about the opposition. She said, `You have decided to vote against it.'


Senator Kernot —They have decided not to be part of the process.


Senator HARRADINE —She said, `Why do you need to be involved in the Committee of the Whole?'


Senator Kernot —No.


Senator HARRADINE —That is how it came across to me. I voted for the second reading of the bill so that the legislation could go into the committee of the whole for the very purpose of examining it. It is fair to say that even though the opposition voted against the second reading of the bill, every member of the opposition has the responsibility to ensure that the legislation is properly explained to the chamber. Each and every one of the amendments should be properly explained to chamber—especially if the legislation is likely to end up in the High Court. I assume Their Honours might like to read the debate that took place in the committee of the whole.


Senator Collins —Probably not.


Senator HARRADINE —They may do. They could well use this debate as an aid to the interpretation of the law which will be passed by this chamber. We have processes to ensure that that occurs.


Senator Tambling —And that takes time.


Senator HARRADINE —That does take time. One of those processes is the Committee of the Whole. I have noted what the Australian Democrats have said about their amendments. Some of the Democrats' amendments were contained in a statement by Senator Spindler in the report. I have received the Greens amendments. They need to be considered.


Senator Kernot —Two weeks ago.


Senator HARRADINE —That is what I said. I think this report came down on 9 December. I received the Greens' amendments yesterday and I have received the government's amendments. I am not going to be in the position of truncating the debate in the committee stage. If it is necessary to sit tomorrow, Monday, Tuesday and Wednesday then we ought to sit on Monday, Tuesday and Wednesday. I am not saying that this is the most important bill to come before this chamber, but it is a very important bill. To truncate the Committee of the Whole debate on this important bill would mean that the Senate is not discharging its obligation to review the legislation.

  We can ask questions of the minister because we are in the committee of the whole. I want to ask the minister about the government's proposed amendments. I have a number of proposed government amendments and one of them is headed `government 14A'. Is that still a proposed government amendment? I want to be very clear about this. I am told that it is out. When was it taken out? That proposed amendment was in as far as I understood.