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Saturday, 18 December 1993
Page: 5194

Senator GARETH EVANS (Minister for Foreign Affairs) (10.12 p.m.) —Might I indicate from the government perspective that we are prepared to support Green amendment 6A, essentially for the reasons that Senator Chamarette has just stated. The amendment makes it clear that, in the case of compulsory acquisition, the non-extinguishment principle will apply. What all this means in practice is that, in the first place, native title rights will be able to be exercised to the extent that they are not inconsistent with the acquisition or, in particular, with acts done pursuant to the acquisition. If an act done in giving effect to the purpose of the acquisition—for example, the building of a road or a hospital—would at common law have the effect of extinguishing native title, then it would extinguish native title. This does not inhibit that occurring, but we have got to wait until the act is done.

  The amendment avoids the situation of land being acquired for some purported public purpose, but then nothing actually being done to advance that public purpose. It is important, I believe, and the government believes, that native title not actually be extinguished until such time as the relevant public purpose is actually implemented. There have been too many cases in the past, and there may—let us face it, suspicious people that we are—be more such cases in the future. The compulsory acquisition power might be employed to avoid native title being able to be exercised under some purported pursuit of a public purpose, but then nothing actually occurring. It is a bit of a risky task for the states because they are in the business of having to pay compensation but even so, of course, the states are not bound by just terms provisions as we are at the Commonwealth level because of the constitutional amendment that was opposed, among other things, by the opposition at various stages.

Senator Alston —Allowed by this bill.

Senator GARETH EVANS —Allowed by this bill. They are not bound by the constitution, though.

Senator Alston —I think that referendum question got about 35 per cent, did it not?

Senator GARETH EVANS —Yes, with a bit of help from the very sophisticated and civilised way in which the arguments were advanced by that large bald headed person on the honourable senator's side of the equation. He ought to be ashamed of himself for his contribution to public policy in this country, but that is another question for another day.

Senator Alston —I wrote the No case.

Senator GARETH EVANS —The honourable senator wrote the No case; he ought to be ashamed of himself too.

Senator Alston —Thank you very much, Gareth.

Senator Crane —You should have a haircut too.

The TEMPORARY CHAIRMAN —Order! Can we have the remarks addressed through the chair, please.

Senator GARETH EVANS —One of the less happy periods in the history of this country, I think.

Senator Alston —Have a look behind you. There are some bald fellows there too.

Senator GARETH EVANS —Democracy at work; one can always appeal to vulgar popular sentiment. Anyway, back to being more high-minded. As we are now in the pursuit of this particular legislation, we do not think the extinguishment should actually occur until some act is done pursuant to the acquisition. Extinguishments are a pretty substantial thing to happen; they are a pretty draconian thing to happen to native title. We are prepared to accept that it can happen if a proper compulsory acquisition takes place for a proper public purpose, and some act is actually done to advance that particular purpose, but not otherwise. That is what this amendment does. We support it.