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Saturday, 18 December 1993
Page: 5134


Senator GARETH EVANS (Minister for Foreign Affairs) (2.45 p.m.) —For the sake of clarity, I refer Senator Spindler to the language in Democrat amendment 15(b). I think he is probably underestimating the extent to which the sort of situations that he has in mind are already protected by clause 15. If there are actual rights that one can identify—whether created by legislation, which is the easy case, or by common law and whether or not involving rights of usage—long usage and long adverse possession rights will almost certainly be recognised by the common law.

  We are a bit concerned that a pastoralist may, out of the goodness of his heart, give someone access to a fishing hole or something like that and people will go there for a month or two and establish the access associated with that, but we can hardly say that is long usage—let alone adverse possession or anything terribly traditional. It is just an access that has been granted. Under the terms of the Democrat amendment, we now have a situation that that would produce, in perpetuity, an inhibition on the scope of the lease in question. That is the trouble with the Democrat amendment. Let us look at the language in 15(b):

(b)  the doing of the act would affect any existing access to and enjoyment of any land or waters . . .

That is access right now; it is not access that has existed over multiple generations or something of that kind. It is just existing access. There are some problems in the way in which this is drafted. I understand the intent and force of some of the honourable senator's arguments, but I think the main things he is concerned about are probably already covered by clause 15.