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Saturday, 18 December 1993
Page: 5161

Senator GARETH EVANS (Minister for Foreign Affairs) (5.31 p.m.) —I rather suspect that Senator Ellison would not mind having the opposite brief when it came to justifying some amendments along the way to improve a bit of legislation that he thought was lousy. I will not put his feet to the fire on that one. I think I would prefer to have the other brief if I were him. Let us leave it at that.

Senator Ian Macdonald —You worry about yourself; don't worry about us.

Senator GARETH EVANS —I have long since ceased to worry about Senator Ian Macdonald. In relation to compensation rights, the language and substance of clause 19 have been called in issue quite apart from this amendment by Senator Ellison.

  As to this change in the language from `The compensations payable by the State or Territory' to `The native titleholders may recover the compensation from the State or Territory', I think that is distinction without a difference. It is essentially stylistic, rather than substantive. It is not designed to conceal anything; it is just indicating a drafting preference for expressing this in terms of the rights of Aboriginal people rather than in terms of the liability of state governments, but it does not alter the substance.

  As to the substance, I think it needs to be understood that all that is happening here is we are creating a right to compensation in circumstances where the states or territories choose to set in train validation exercises of their own. It is not imposing a compensation liability upon the states; it is simply saying that if they choose to go down this particular path—and state laws provide for the validation—then, under those circumstances, compensation should be able to be recovered from the state.

  Perhaps I should say at the outset that here, as elsewhere, I think we are talking more about a theoretical possibility than a likely reality. We are talking about validation exercises of past invalid grants that have been made as a result of native title, together with the Racial Discrimination Act or something of that kind. As I have said now on innumerable occasions, we do not really think there are many, if indeed any at all, such cases which are likely to cause validation problems. Nonetheless, to get certainty to exclude the possibility of concern in this respect, we are providing this validation regime. We are providing, moreover, that not only can the Commonwealth do it in relation to Commonwealth areas, but the states can and should do it in areas that are within their own domain. That is the background.

  As to the question of the suggestion that it is somehow unconstitutional to impose liability upon the states, there are a couple of points to be made. Firstly, I repeat this is not an imposition exercise; it is making plain that the compensation should be payable by the state if the states themselves do the validation exercise. There is some advantage in them clarifying the law themselves in this respect. The second point is that the suggestion in the opinion of my former colleague Dr Howard that there is some necessity for liability of the compensation of the bill to fall upon the Commonwealth is simply misconceived in our judgment. Our legal judgment is that the liability for compensation arising from validations falls on the government which is doing the validating.

  Dr Howard's argument amounts to an argument essentially, as I understand it, that any invalidation of a grant by the Racial Discrimination Act amounts to an acquisition of an interest by the Commonwealth and thus requires the Commonwealth to pay compensation, not any government that might subsequently do the validating. This was not the view that was taken by the High Court in Mabo No. 1, where this issue was tested, and we have difficulty in accepting the proposition that he advances. The Commonwealth and the state and territory governments have all understood this issue very well from the outset. I do not think any of this will come as any surprise to them.

  In the context of another one of these clauses—it raises the same sorts of issues—the purpose of the amendment to clause 33, in case one is minded to have reference to this at some future stage, is to simply provide that any liability arising under the RDA in the past will fall upon governments rather than individuals. It does not work as such to place a new burden on the states. In situations where the states set up their own tribunals or courts, the bill will enable native titleholders to pursue claims against the states for compensation. If they do not, they will not have that option.

  The suggestion by Mr Reith the other day, in the context of quoting Dr Howard's opinion, that the offer by the Prime Minister (Mr Keating) for the Commonwealth to contribute to state liabilities incurred through this validation process was a sleight of hand is not a categorisation that we would accept. We regard the states as genuinely having the liability to pay compensation if it is them that goes down the validation path. It is only them that can do it when we are talking about validation of state grants, for reasons we talked about before. But the Commonwealth has said that it will be prepared to help out. The most I can say publicly in this respect as to the scale of that helping out is what has already been said publicly by the Prime Minister—that is, that we will pay at least 50 per cent. That is a subject of further discussion and negotiation between the states and that certainly does not necessarily represent a final offer so far as the Commonwealth is concerned.

  With the utmost of respect to Senator Ellison—I know he is approaching this whole issue in a reasonably serious minded way; he did serve on the Senate Standing Committee on Legal and Constitutional Affairs and has been following the technical stuff pretty closely—I really think that the foundations of his argument are a little askew because they are premised on the assumption that there is an imposition of liability here and that is simply not the case.