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Tuesday, 21 December 1993
Page: 5487

Senator ELLISON (10.18 p.m.) —It has been a long four days and we have covered a good deal of ground in this bill. But I just finish on the note that the complexity of this bill never ceases to amaze me. As has just been demonstrated in that last exchange, it still might be that this has to be resolved by a court. We are not left with any sufficiency of certainty. I will give the committee an example. If one looks at the definitions section, one sees the definition of `native title party'. If one looks at clause 29, we see that phrase mentioned there. One then goes to clause 207 which contains the list of definitions. Under the phrase `native title party', one is referred to clause 238. When one goes to clause 238, the meaning of `native title party' is set out. It states:

"native title party"

this is the third clause that we have looked at—

has the meaning given by paragraphs 28(2)(a) and (b) and section 29;

So we then go back to clauses 28 and 29, which is where we started. We then have to wrestle mentally with what `native title party' is. That is just one phrase which appears in the bill; there are many others. With due respect to the government, I do not believe that this bill has effectively addressed the issue. Any person who picks up this bill and reads it to see what redress or cause of action they would have would be seriously confused.

  I agree that this is a very complex situation. I have been very lucky to have served on the Senate Standing Committee on Legal and Constitutional Affairs and to have had the benefit of lawyers advising the government on this situation. I compliment them on their work. Mr Orr has been most helpful in the questions that I put to him. Nonetheless, we have a bill which is so complex that the average man or woman would have no chance to come to grips with it. This chamber has been wrestling with it now for four days. I think we have seen just how many pitfalls there are in relation to the bill's efficiency.

  Leaving aside the purposes for such a bill, the ideals which it is supposed to promote and the problems that it seeks to address, my thrust is whether it does the job. That is what legislation is all about. I know that, because laws are imperfect and human beings are imperfect, the system will never run perfectly; it will never be that smooth. But the responsibility stops in this chamber to make sure that the legislation we pass does work and can run as smoothly as possible without leaving matters to be determined in the courts, which will give batteries of lawyers lots of work to do.

  I remember a client of mine who once said that the problem with the law is that it is not simple. I asked him how he would fix it. He said that he would simplify it, so I asked him how he would do that. He replied that he would make it more simple. I could see that I was getting nowhere with him. It is very easy to say that legislation should be simple but, when day-to-day events in human affairs, especially over a passage of time, evolve and are determined, they become more and more complex. So any piece of legislation which sets out to govern human affairs and behaviour always offers a very difficult task to the person setting out on that course. I do not think the definitions and the drafting—not necessarily the style of drafting, but the way in which this bill is set up—are an effective response to the Mabo No. 2 decision.

I finish by referring to another aspect. The bill quite cleverly divides past acts on one side and future acts on the other; that is, what category of acts has gone before and what is to come. That would seem to be the most reasonable approach. The problem with the definition of past acts is that it says, if one were granted a lease in the past and one has an option to renew it in the future, that act in the future is really a past act. That is one of the most confusing things about this legislation. I could cite more examples but time does not permit me to do so tonight. The same applies to future acts, impermissible acts and permissible future acts. That is the reason I wish to place on record my grave concerns about how this bill will work.

  I appreciate the minister's endeavours to assist me over the last four days with the inquiries I have made of him and I do appreciate the assistance given by his advisers. But I must respectfully say that, at the end of the day, I am not drawn to the conclusion that this bill will work. Time will tell; it will be only by experience in the courts that we will unfortunately discover these flaws.