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Saturday, 18 December 1993
Page: 5098

Senator GARETH EVANS (Minister for Foreign Affairs) (10.17 a.m.) —I do not want to turn this into a jurisprudence seminar, but if the state were to—

Senator Vanstone —Which is suggesting that you are capable.

Senator GARETH EVANS —I am touched again by that bit of flattery from Senator Vanstone. I suggest it is unnecessary—

Senator Vanstone —So were your insults during the week.

Senator GARETH EVANS —I am just saying that I do not think anyone in the chamber wants to get into a detailed discussion of the theory and nature of common law versus statute law interpretation and so on. To the extent that I have been asked this question, an evolving body of state court interpretation of state statutory law is manifestly what is not intended to be subsumed by the expression `common law of Australia' in relation to native title. It is a completely different concept that has been introduced by the Western Australian legislation. It is a statutory right based on traditional usage. It has nothing to do with common law native title. As I understand it, the whole point of the Western Australian legislation is to sweep away the Mabo common law native title. (Quorum formed)

  I think I have said what I needed to say. I have tried to answer Senator Alston's point that the intention here is to refer to the common law of Australia relating to native title as it has now been articulated by the High Court in Mabo and as it subsequently develops. The whole point of this particular clause is simply to ensure that federal courts and federal tribunals are vested with the authority to make these determinations and to move this forward. Of course, we are perfectly happy for state machinery, state tribunals, to perform those same functions simultaneously. There is no reason whatsoever why simultaneous jurisdiction cannot be exercised in this respect. That is the intention that runs through the legislation.