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Friday, 17 December 1993
Page: 5076


Senator ELLISON (11.25 p.m.) —I will speak again because I have not had time to look at this amendment. It was not one of the amendments put in Senator Spindler's list in the committee report. I am indebted to Senator Spindler for the time that he put into it. This is a late addition.

  I want to say two things. Firstly, the principle of applying a law in a retrospective fashion is abhorrent; it has to be. It means that what was legal yesterday and what people did yesterday in the belief that it was legal can be made illegal today. We start on the basis that it is an entirely undesirable principle of law to apply. In fact, notable totalitarian regimes in recent history have employed it quite effectively. I have an absolute abhorrence of applying a law retrospectively.

  But I appreciate that this argument might be raised. The Mabo decision came in June 1992 and the common law recognised native title. By backdating this law, we are not necessarily creating a new law because we are just recognising the Mabo decision in a retrospective fashion. That might hold some weight, but on balance it does not quite get up.

  Division 3 of part 2 of the bill talks about future acts. I do not think it makes any reference anywhere to, for instance, the Racial Discrimination Act. That occurs in division 4, but not in division 3. In his judgment, Brennan J said that a state government could extinguish native title as long as it abided by the laws of the Commonwealth—notably, the Racial Discrimination Act—and it acted constitutionally. The High Court was saying, `There is native title, but it can be extinguished as long as it is extinguished properly'.

  Brennan's judgment was regarded as the leading one. Two of the other judges, whose names escape me for the moment, followed his judgment on that point. This does not retrospectively apply the Mabo decision. If it did, it would recognise that one could extinguish native title in accordance with the Mabo decision. I do not believe that division 3 of part 2 of this act, on its own, reflects the Mabo decision. Taken in isolation, I do not think it covers all those points.

  The problem that this amendment runs into is that it applies specifics. The simple sentence that is in the present clause 10 says `in accordance with this act', and in one broad brush it encompasses the whole piece of legislation. But this narrows it down to division 3 of part 2 of the bill. That is where it runs into trouble. Quite frankly, it does not survive the criticism of it because of its retrospective effect. It is not retrospectively applying the law in accordance with the Mabo decision.

  Further, it is an attack on the states' ability to constitutionally deal with land management. It is a fact that land management was reserved by the state governments at the time of federation. They ceded powers to the Commonwealth. (Quorum formed)

  We reached the stage where the states had not ceded land management to the Commonwealth at the time of Federation. That might sound legalistic and a very dry argument but, nonetheless, it is one which carries weight and one that must be acknowledged. It is a constitutional argument and one which cannot be infringed. If it is, then the law is bad.

  I say that this amendment takes this whole clause into more troubled waters. During the course of the hearings of the Senate Standing Committee on Legal and Constitutional there was evidence that the interference by the Commonwealth in respect of state jurisdiction in this area could cause constitutional problems. In fact, clause 7 says, in a rather vague way:

This Act is not intended to affect the operation of any law of a State or a Territory that is capable of operating concurrently with this Act.

The expression `capable of operating concurrently with this act' is rather vague. Does it mean that general laws pertaining to land management could operate but, as soon as they cross over into the native title area, they are inconsistent with the Commonwealth? But this bill may have consequential effects in respect of state land management systems. That is where the Commonwealth goes beyond the field it intends to cover .

  This clause is a classic example of the Commonwealth overstepping the mark in relation to state jurisdiction. It is doing it in a retrospective fashion. I think this clause is ill-conceived. I will conclude by asking the minister whether he has had any considered legal advice on the operation of this clause and the application it might have in relation to state laws on land management. If that advice has been obtained, can we have the benefit of it?