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Wednesday, 9 October 1996
Page: 3789


Senator BOB COLLINS(3.13 p.m.) —I wish to speak on the issue that was raised by Senator Ellison. I said earlier today in the censure debate on this matter of the government's proposals to amend the Native Title Act that it is the first time in my political lifetime—and I would suspect one would have to go back an awfully long way to find another example—that I have ever seen in black and white a proposal to actually legislate for paternalism. It is found in the document the government produced yesterday.

Senator Ellison has just talked about the courage of the government. Can I say that, in my view, `the stupidity of the government' would in fact be a better phrase. This is not going to solve anyone's problems. It is a fraud. It is a fraud on the National Farmers Federation, the miners and anyone else who cares to fall into this trap of believing that, in terms of determining the common law rights of Aboriginal Australians in native title, you can do so by legislation with absolute certainty. You cannot.

This is a fraud and a smokescreen that the government is attempting to put up, but it is also extraordinarily offensive. I direct the attention of senators to page 3 of the document that the government produced yesterday. By the way, just as a matter of interest, the government has also claimed that they are simplifying the act with these amendments. Could I point out to the Senate that the original Native Title Act was 127 pages long. This is now the second package of amendments the government has produced. The first package of amendments consisted of 77 pages. This next package is 84 pages.


Senator Ellison —You introduced 180 amendments on the run.


Senator BOB COLLINS —Yes, but you are simplifying it! Amendments to simplify the act now amount to 161 pages of amendments. I might say that, in terms of the central thrust of those amendments, they will not provide certainty at all. I think people like Senator Minchin actually know it.

Look at the section on page 3 of these amendments—this is one of the crucial ones—that is headed `Early ministerial intervention in the national interest'. This is one of the red-hot ones. According to the press, the Minister for Aboriginal and Torres Strait Islander Affairs—it made out exactly the case I made out this morning—is not an advocate for the Aboriginal people of Australia; he is an advocate for the government to them. The minister for Aboriginal affairs is going to get the job of overriding Aboriginal opinion, but under what circumstances can the minister do so? Read the government's paper. Under the heading `Early ministerial intervention in the national interest' it says that where native title holders determine they do not want a development and that it should not go ahead, the minister can ministerially intervene and order it to go ahead. Under what circumstances? He can do it when:

(a)   the act is of `substantial economic benefit to Australia';

(b)   if the determination is not made at the time, that benefit will be substantially reduced or will not arise;

(c)   if the act is done, there will be significant benefits to native title holders.

Can you believe that? It is the first time I have seen paternalism legislated for in black and white, and it is happening in 1996. In other words, they are saying that the great white father, the federal minister for Aboriginal affairs, the protector of Aborigines—that is how the government sees Senator Herron; it is certainly how the Prime Minister sees him—can determine that they will receive significant benefits from the mine. Some Aboriginal people in Kakadu National Park have determined—they met with me last week as a matter of fact—that because of the disruption that is currently being caused out there, rightly or wrongly, in terms of their community, they do not want mining to proceed. That is their view as a community. They are the people who actually live and experience these things.

The federal minister for Aboriginal affairs in 1996 can overturn their decision in their interests. The minister for Aboriginal affairs can determine that they do in fact receive significant benefits from the mine. They do not know their own minds; they do not know what is best for them! He can put that aside. I could not believe this when I read it in the government's paper yesterday. It is legislated paternalism and it is utterly contemptible.

I say to Senator Minchin and Senator Ellison that I would predict safely—it is hard to predict things in here, as we all know, but I am prepared to take a punt on this—that whatever else might pass through the Senate, and a great deal of this no doubt will, this particular obnoxious provision that the minister for Aboriginal affairs can supplant the views of the Aboriginal people themselves as to what is in their interests will be, if nothing else, rejected by this chamber.


Senator CAMPBELL (Parliamentary Secretary to the Minister for the Environment and Parliamentary Secretary to the Minister for Sport, Territories and Local Government)(3.17 p.m.) —I would like to make a few comments in relation to this motion. I would like to join Senator Ellison in congratulating Senator Minchin on undertaking a genuine consultation process, which I believe commenced only a few days after Senator Minchin was sworn in as a parliamentary secretary. It is in absolutely stark contrast to the processes that were undertaken by the previous government, where they basically did not involve the state governments or the mining industry. They involved but a clutch—a small group—of Aboriginal interests to negotiate with, excluding the interests of tens of thousands of other Aboriginal groups around this country.

We saw the same process of consultation in relation to the land fund, where they were trying to put together a package as part of the deal to get the native title legislation through. The minutes of the meeting that were used to discuss the land fund, which was part of the native title package, show the consultation processes that were undertaken as part of that. The minutes show that there were six or seven hand-picked A-team negotiators, people that Mr Keating chose to deal with. To his credit, I do not think Mr Tickner would have agreed that that was a inclusive or consultative process. He said that he had the agreement of Aboriginal Australia.

We found out, both at hearings of the Joint Committee on Native Title, now chaired by Senator Abetz, and also the two select committees on the land fund, that there were thousands of Aboriginal people across Australia who were appalled by the way that the Keating Labor government and its failed and since disgraced minister for Aboriginal affairs, Robert Tickner, handled consultations.

Senator Minchin and Senator Herron have gone about their jobs in a studious way. They have consulted broadly with all of those interests. We need to recognise—I think Senator Collins did recognise this—that it is very hard to create certainty in this area. It is almost impossible. When Mr Keating was Prime Minister he virtually ensured through his own bull at a gate type actions that that certainty could not be created. He legged over the National Farmers Federation and Rick Farley. Rick Farley had incredible egg on his face after he came into the coalition party room and said, `Look, you've got to support this because we've got a promise on pastoral leases.'


Senator Bob Collins —It was delivered, Senator.


Senator CAMPBELL —Senator Collins, I invite you to go to the Kimberley region of Western Australia, the Pilbara region of Western Australia, the Murchison region of Western Australia or anywhere in Queensland or across your own state and find out how many pastoral lease holders think they have certainty of their title. You find me one pastoralist who thinks that that clause in the Native Title Act delivered one bit of certainty. It is not an easy piece of legislation. It is not an area that is easy to deal with. The government is trying to simplify it.

I want to respond to two points you made, Senator Collins, through you, Mr Deputy President. I start by referring to simplification acts. We have had a couple that stick in my mind in my relatively short time in this place. Firstly, there was your government's attempts in 1990 to simplify the corporations law. That was a 2,500 page exercise, as I recall. Indeed, it actually achieved a bit of simplification. It does not matter how many pages you have in a bit of legislation—it is the effect, the outcome and the processes you create. The former member for Canning and Assistant Treasurer at the time brought in a tax simplification process.


Senator Panizza —Oh, yes; we remember that.


Senator CAMPBELL —Senator Panizza, I do not have with me the figures and the extra pages of legislation that that created, but I suspect—I do not mind being proved wrong—that it is more than is contained in the legislation that this government will bring before this chamber in relation to the Native Title Act.

I also want to make a point about legislating for paternalism. Senator Collins, you and I disagreed on what I considered to be a great piece of paternalism, or a nasty piece of paternalism, in the land fund bill. Your government, your minister and your Prime Minister deemed—the notes of that meeting with the Prime Minister and the A-team confirmed this—that if you want to own land and you are an Aboriginal in this country, you have to be a corporation. They said, `You can't have the same rights as all other Australians. If you are an Aboriginal and you want to get assistance from the Commonwealth government, you go down and incorporate yourself first.'


Senator Bob Collins —They know the con you are trying to pull on that one, Senator.


Senator CAMPBELL —Senator Collins, you do not know that. My motives in relation to that are absolutely beyond reproach. I do not believe that any government should tell any Aboriginal person that if they want to own a bit of land in this country, they have to be a corporation, but if I do or you do, we do not have to be. That is paternalism with a capital `P', and that was your game. (Time expired)


Senator BROWN(3.23 p.m.) —The problem with the presentation that we have just heard was its total concern for certainty for the non-Aboriginal interests—certainty for the mining companies and certainty for the pastoralists. What about certainty for the Aboriginal community in this country? Don't they count?


Senator Bob Collins —They are out of the equation.


Senator BROWN —They are always out of the equation. It comes through in that sort of presentation. The people on the other side of the chamber do not even know what they are saying. They do not even get the message that their own words speak so loudly that anybody who is able to tune into that sort of message can pick it up—Aboriginal people will get what they are going to be given by this government. Paternalism is writ large, as Senator Bob Collins says, on these changes to the Native Title Act that are being brought in.

The minister for Aboriginal affairs is going to be able to dictate what is good for the Aboriginal community in this country. Isn't that a throwback, as Senator Collins says, to the protector for Aboriginal or native peoples status of the past?

Take a look at the other parameter, which is that the minister can decide that a mining venture should go ahead against Aboriginal objections if it is in the economic interests of Australia. What a provision. Which senator opposite is going to say that any mining venture brought before them is not in the economic interests of this country? The changes are saying that any mining venture can be given the nod over the most strenuous objections from the Aboriginal community in the interests of them and their relationship with the land. And that is that.

I refer to this consultation process which the government is talking about. In six months they have got it right. In some months of consultation with the Australian indigenous community they know what is good for them. That is redolent of paternalism. That is redolent of misunderstanding. That just wreaks of you know what is good for the Aboriginal people above what they believe is good for themselves. This is a U-turn against the process toward reconciliation which has been going on over the last two decades.


Senator Panizza —What have you done about it?


Senator BROWN —I am here challenging you today; that is what I am doing about it.


Senator Panizza —For a start, have you ever employed Aboriginal people?


The DEPUTY PRESIDENT —Senator Panizza! You do not have the call.


Senator BROWN —Thank you, Mr Deputy President. The great difficulty at the moment is that the Aboriginal community in this country has the right to be feeling demoralised. They have the right to feel that there is a great tide of abreaction against the increasing enlightenment of the last couple of decades and that they are having the advances that were made taken away within a matter of months in the direction this government is taking.

Whose interests in the land are going to be supreme and arbitrated by the ministers of this government, including the minister for Aboriginal affairs? Will it be the Aboriginal interests? No, it will not be. It is going to be the interests of those people who have the most amount of money in their pockets—the miners, the loggers, the resort developers. Of course it will be.

In every case, it will be said that this is to create jobs, create prosperity and advance the material wellbeing. This is because there is not an understanding among those opposite of the other values that make life tick and that are supremely important to the indigenous community of this country.

So the answer that was given in question time failed to represent the interests of the Aboriginal community in this country. As has been debated quite clearly and underscored in the debate in this chamber earlier in the day, we are now in the situation where the minister for Aboriginal affairs does not represent Aboriginal interests first. He is putting the interests of sectional and corporate sectors first and will continue to do so into the future.

For those on this side of the Senate, this means that we are going to have a long and difficult task to try to bring some enlightenment to those opposite who simply do not understand the importance of the indigenous interest, not only to the land but also to the wider interests of this country.


Senator ABETZ(3.28 p.m.) —What we have heard, especially from Senator Brown just now, is an indication that if you are unarmed with facts you can say anything just as long as it sounds good. First of all, Senator Brown, do you honestly believe that we on this side of the chamber never bothered to consult with the Aboriginal community until 2 March? We have been consulting with the Aboriginal community ever since the Liberal Party was formed. We were the ones who put through the 1967 amendment to the federal constitution. As far back as that, it was us who had a very proud record in relation to Aboriginal affairs. For you to suggest that we never consulted until 2 March is a nonsense.

Why do you think we went to the people at the last election with a promise to amend the Native Title Act to make it more workable? It was because we had been consulting with the indigenous people, who themselves saw the very real problems with this legislation, Senator Brown. If you had the benefit, as I have had, of the 11 days of hearings conducted right around Australia with the Aboriginal community, you would have been moved and impressed by the evidence. Sure, they were not necessarily the Aboriginal community that we read about in the newspapers every day and that we see ad nauseam on the 7.30 Report, but let me say that they were very genuine Aboriginals who do not have the money from ATSIC and elsewhere to try to create a lot of publicity for themselves.

But let me give you a example. A small tribe in south-west Queensland were absolutely outraged that a native title claim had been brought over their traditional area by people whom they called `foreigners'.


Senator Bob Collins —Of course they would be outraged.


Senator ABETZ —Do you know why they were outraged? Because there was no proper threshold test requiring that Aboriginal group to justify why they were bringing that claim. They did not have to justify it; they did not have to say, `This is our traditional land' because, as soon as they would have had to research that, they would have had to excise that area that related to that south-west tribe in Queensland.

We heard evidence from other lawyers representing Aboriginal groups who agreed that an increased threshold test, for example, would get rid of vexatious claims and give credibility to the currency of native title. It might actually make it work for Aboriginals. You see, Senator Brown, this legislation has been in place now for a considerable period of time and not a single grain of Australian soil has been delivered to the indigenous community under this Native Title Act.


Senator Bob Collins —If it had been, you would have been screaming your head off.


Senator ABETZ —Senator Collins is interjecting, and he said to us that the Prime Minister had delivered on pastoral leases. Of course, I remind him that in the second reading speech, on 16 November 1993, your then Prime Minister promised the pastoralists that native title was extinguished on pastoral leases. Can I just ask the rhetorical question: what do you think the Wik case, which is in front of the High Court, is about? It is exactly about the question of pastoral leases because the legislation did not make it clear.

It was clearly within our election promises to make the Native Title Act more workable. We want to see it work. At the moment it has provided heightened expectations, with no genuine benefits or benefits being delivered to any of our indigenous brothers and sisters. I have to say to you, Mr Deputy President, I unashamedly support the genuine work that Minister Herron and Parliamentary Secretary Minchin are trying to do without playing politics. It is very important that we get this right and that we do it very carefully. They have been very diligent in that task, and it is very sad that we get these very—(Time expired)


Senator MINCHIN (Parliamentary Secretary to the Prime Minister)(3.33 p.m.) —I just want to make a few remarks in whatever time remains to this taking note of the answer in relation to native title. I do want to address my remarks to what Senator Bob Collins has said—and I am sorry that he has now left—because I do respect what Senator Bob Collins has to say on native title matters; I respect the experience he has on this. I do just want to say that I am sorry to hear that he thinks this is legislated paternalism, and I would be very glad to talk to him about his concerns with the particular provision we are referring to—that is, the power for the minister to intervene in relation to the right to negotiate process.

The amendment has been drafted to ensure that there is consideration of native titleholders' interests in the matter. So it was done very deliberately to ensure that the minister must take account of the interests of native titleholders when deciding whether or not to exercise the power proposed under that particular provision. I am therefore somewhat concerned by the remarks of Senator Collins, and I would like to talk to him about them. I would also remind him, of course, that the Labor Party in framing this bill did provide in section 42 for the minister to be able to override a determination made by the arbitrator, the tribunal, in order to allow a mining project to proceed.

All we are doing is taking and applying exactly the same principle that is already in the act—that is, the capacity for the minister to insert his or her own determination in relation to the question of whether a mine can proceed by simply allowing the minister to bring such an intervention forward in the process—being the principle that the Labor Party provided in the act when it drew it up in 1993. I think the hysteria that has been built up over this suggestion is really quite ridiculous.

I would also like to take the opportunity to stress that we have built these amendments very much on the principle of respecting the Racial Discrimination Act. We have gone out of our way to make sure that these amendments are not inconsistent with the Racial Discrimination Act. Nothing we have done in relation to our proposals on the right to negotiate would constitute any breach of the Racial Discrimination Act, nor is there anything in our amendments which breaches our fundamental commitment to respect the fact of native title where it has survived. In other words, we are not proposing, nor will we, any extinguishment of native title. Those are the two fundamental premises of our approach, and all these amendments respect those two commitments.

I also thank Senator Brown for his contribution, but I am also sorry that he thinks what we are doing is paternalistic. I would hope that is not the case. I would ask him to consider the fact that under this act, which has been in operation for three years, and in the four years since the Mabo decision, there has not been one determination that anybody, other than the Murray Islanders, has any native title. I think that is a very sad fact, and I think it is partly because of the incredible complexity and, frankly, unworkability of many parts of the Native Title Act.

Much of what we are proposing I think will lead to a situation where it will be easier for Aboriginal groups to be able to get a determination in their favour that they have native title, and I hope that that will be the outcome. But at the moment, claims are getting bogged down in the most extraordinary and expensive legalistic processes that we want to simplify. It is not all a one-way street. There are many respects in which we have taken on board and accepted propositions put to us by Aboriginal groups, particularly in relation to the amendments dealing with the representative bodies. Those amendments take on board many of the things put to us by Aboriginal groups.

The question of only allowing the registration of group claims is very much in response to Aboriginal positions put to us. It does not and will not prevent individual Aboriginals from making a claim to the Federal Court for a determination that they have native title. But in response to propositions put to us by Aboriginals, we are proposing that individual claims not be allowed to be registered for access to the right to negotiate—because, as Aboriginals keep reminding us, native title is really a communal title, a group title. Aboriginals are extremely concerned by the extent to which the act allows individual claims to be made with no group basis. So we have a situation of multiple overlapping and competing claims, particularly in the gold fields of Western Australia, that are seriously causing disharmony among Aboriginal communities.

So we are working with Aboriginals to try to overcome some of those problems caused by the current structures in the act. Also the voluntary agreements process, as referred to by Senator Ellison, is something that Aboriginals are looking for. In fact, it is one area where there is great unity of purpose among industry, state governments and Aboriginals to find a way in which voluntary agreements can be entered into and registered so that acts can occur on native title land with the agreement of Aboriginals and so those acts can be valid and for the benefit of Aboriginals.


The DEPUTY PRESIDENT —Order! The honourable senator's time has expired.

Question resolved in the affirmative.