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Saturday, 18 December 1993
Page: 5119


Senator GARETH EVANS (Minister for Foreign Affairs) (12.16 p.m.) —I am happy to try to explain it. This is a central feature of the bill and it is fair enough for these questions to be raised in this way.

  Opposition senators interjecting


Senator GARETH EVANS —Look, I am trying to approach this in a sensible and helpful way. For God's sake, can we cut out some of the bloody nonsense across the chamber please.

  The ACTING DEPUTY PRESIDENT (Senator Crichton-Browne)—Order! I am sure that is Senator Evans's way of being friendly.


Senator Vanstone —Well, he doesn't take it as our way of being friendly when he gets a bit of condescension back.


Senator GARETH EVANS —I am glad Senator Vanstone acknowledges that as condescension. I will try to explain again what this is all about. Valid leases, about which there is no question of invalidity, apply to their full force and effect. But, equally, they apply subject to any existing common law or statutory reservation. There is no doubt about that; it is just the present law as it stands.


Senator Crane —I acknowledge that.


Senator GARETH EVANS —There is no need to spell it out in legislation. It is there; there is no contest about that.


Senator Crane —I am not asking you to spell it out.


Senator GARETH EVANS —But Senator Crane is asking me to explain why the stuff is spelt out in the legislation so far as invalid and, subsequently, validated grants are concerned but not spelt out so as far as valid grants are concerned. I am trying, with the utmost respect, to tell him. There is no need to spell it out so far as always valid grants are concerned because there is no argument, no contest and no disagreement by anyone as to what the law is and what the practice is.

  So far as past acts that have been invalid are concerned and have to be validated, obviously we are in a kind of no-man's-land situation. If we are going to create genuine certainty we have to codify and spell out what precisely the status of all the different elements of the equation are. We have to spell out what the status of the grant itself is, we have to spell out what the status of any statutory or common law reservations might be, and we have to spell out what the status of native title is because there is uncertainty about this. We have done it. In clause 15 we have spelt it out in the case of validated interests. I ask the opposition to glance at clause 15, which says:

If:

(a)the act attributable to the Commonwealth contains a reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders;—

That is say, if a Commonwealth pastoral lease, for example, contained an express reservation allowing—


Senator Crane —Is there such a thing as a Commonwealth pastoral lease?


Senator GARETH EVANS —I am referring to a Commonwealth grant of an interest over some land for defence purposes or whatever. But if it has been vested in the Commonwealth for defence purposes and it is alienating it for some other purpose, there are possibilities. They do not arise very often. They are mainly in state law, but we are just covering that off to create, again, certainty in the event that there are such situations. More importantly for present purposes, subclause (b) states:

the doing of the act would affect rights or interests (other than native title rights and interests) of Aboriginal peoples or Torres Strait Islanders (whether arising under legislation, at common law or in equity and whether or not rights of usage);

nothing in section 14 affects that reservation or condition or those rights or interests.

So what we have got is a statement with very great clarity and very great explicitness that existing statutory reservations, existing common law reservations—equitable reservations, if you like—will continue to have their full force and effect. What it does make clear is that native title rights under those circumstances will not have that force and effect.

  As I said, we had to address the situation of all three—the status of the grant, the status of any reservations or conditions or limitations on that grant, and the status of native title rights. That is all spelt out very succinctly and very clearly in clause 15 of the bill. So I do not think there is any problem about what all this would be construed as meaning, and the reason for the differential between the validated and the valid is as I have described it.