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Saturday, 18 December 1993
Page: 5213


Senator GARETH EVANS (Minister for Foreign Affairs) (11.46 p.m.) —First of all, I will respond to Senator O'Chee's question. I will then respond to what Senator Spindler has said. The first thing to appreciate is that, under amendment No. 15, clause 25(2)(c)(ii), which we are no longer proceeding with, the subject matter is effectively preserved in clause 25(2)(c). So whatever was substantively achieved by the amendment, subparagraph (c)(ii) is still there in the existing paragraph (c) of clause 25.

  As to the reference to the rights existing on 1 January 1994, that is to be compared with the language of amendment No. 14 which mentions in clause 24(4)(a) acts taking place before 1 January 1994. For all practical purposes, that amounts to pretty much the same thing. Rights existing as at 1 January 1994 are pursuant to the reference in the proposed new clause 24(4)(a) to acts taking place before 1 January 1994. In terms of Senator O'Chee's concern about the abandonment of amendment No. 15, the points I made earlier about the substance of that proposed amendment being sufficiently incorporated in the proposed new clause 24 still hold.

  As to Senator Spindler's point about the particular business of options, to the extent that he was concerned about the provision in subclause 3(a)(ii) about offers, commitments, arrangements or undertakings made or given other than in legislation in good faith before 1 January 1994, and of which there is written evidence and so on, let me frankly say that I understand that concern. That is a rather widely drawn provision. It is important that in practice it be construed and applied by the courts in a way that reflects commercial reality and not sham transactions, but I believe that the courts would be perfectly capable and willing to so construe it.

  The courts will be assisted in that respect by the reference to `in good faith' in terms of the subparagraph in question. I think that will be construed to reflect commercial reality. What this whole amendment is about is reflecting and protecting commercial reality. It is expressly designed to serve an industry or a national interest purpose in this respect. It does not particularly help Aboriginal native titleholders, but nor does it hinder their interests. I go back to the point I made in introducing the clause: whatever else this clause does that people do not like, it certainly does not do anything to extinguish native title rights. To that extent, we believe we have preserved and maintained the balance.