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Wednesday, 23 April 1980
Page: 1753

Senator CHANEY (Western AustraliaMinister for Aboriginal Affairs) - A number of points have been raised by Senator Cavanagh relating to various clauses. Addressing myself to the points raised about clause 3 of the Aboriginal Development Commission Bill, I confess that there were a number of drafts to that clause because it does give rise to some difficulties, some of which are constitutional as Senator Cavanagh mentioned. In the end the formal words 'determined on' were adopted because that is in accord with the constitutional provisions with respect to the reference to people of the Aboriginal race of Australia. The different description which is then given to Torres Strait Islanders relates to the fact that it is perhaps arguable that the Torres Strait Islanders belong to a separate race. In other words the race to which the Torres Strait Islanders belong may extend well beyond the Torres Strait. It is not an argument that I would wish to enter into too closely, but they may well be regarded as being of the same race which is not part of the Australian people.

If we use the same form of words it might be argued by some people, who are not Torres

Strait Islanders as we understand them, that they are entitled to the benefit of the Aboriginal Development Commission Act. From the point of view of drafting I agree it is a little strange that one uses these different forms of description, but that is the reason why it has been done. With respect to any inference which is to be drawn that one accepts that the descendants of Torres Strait Islanders are to be accepted whereas the descendants of Aboriginals are not, I can only assure the Committee that the Government's view of this legislation is- as it is in relation to similar words which have been used in other Acts- that it will apply to Aboriginal people whether they are full-blood Aboriginal or part Aboriginal.

Senator Cavanagh - Yes, but that has never been challenged.

Senator CHANEY - It has not been challenged. But I can assure the honourable senator and the Committee that the Government would propose to apply the same administrative definition as is applied under similar legislation, which is that an Aboriginal is a person of Aboriginal or Torres Strait Islander descent who identifies with an Aboriginal or Torres Strait Islander, and who is accepted as such by the community with which he or she is associated. I cannot guarantee that there will not be some legal challenge with respect to this clause or to any clause in any Act. I can only say in response to that that if there were a challenge which upset the Government's interpretation then obviously the Government would have to move to amend the law. On the advice which we have the position is all right and we can continue to administer the law in the way Senator Cavanagh did when he was the Minister for Aboriginal Affairs and in the way in which we have continued to do so since this Government came to office.

With respect to the other definition of a spouse, about which Senator Cavanagh expressed concern, I inform him that it is the same definition as was put in the Aboriginal Loans Commission Act 1 974. Whilst I see the argument that Senator Cavanagh raised I do not believe that it carries any inference. The Committee would be aware that in many types of legislation- one of the earliest types was workers compensation legislation- provision was made for the position of the de facto spouse. Senator Cavanagh made it clear in his remarks that he agrees, I think as a matter of social policy, that such provision should be made. All we have done here is pick up the quite normal provision which ensures that somebody who is living in a de facto relationship gets the protection which would be afforded a spouse. I understand that there is no argument on the point of policy.

I have drawn the Committee's attention to the fact that we have followed precisely the form of words contained in the Aboriginal Loans Commission Act which, as far as I know, has never given offence to anybody or given rise to any wrong inference. I suppose it could have been expressed that a person who has not gone through a ceremony of marriage is not married in a legal sense. The Committee would be aware that many Aboriginal people, particularly in the more remote pans of Australia, do not marry in a legal sense. They d6 not go through a formal ceremony of marriage under the Marriage Act. Therefore, it is essential that there be this provision which picks up those who, as a matter of the legal procedures laid down in the Marriage Act, are not married. I do not think that there is very much of a problem about that.

Senator Cavanaghwas concerned about clauses 8 and 10. 1 confirm that the Minister does have the power, under those sections, to confer additional functions on the Aboriginal Development Commission. The Government has determined that the Minister should have that power and that he should be entitled to stop a State Parliament from conferring additional functions on the Commission. But it is not open to the Commission to refuse those functions. I am alive to the sorts of concerns that were expressed by Senator Robertson. Obviously one would not force feed the Commission and put it in a position where it could not cope with what it had to do. I do not think that any government would do that. The safeguard is there for the Minister to keep an eye on the Commission and to make sure that it is not overloaded. I think that is a reasonable provision.

Insofar as the power of clause 1 1 is concerned, the matters which have been raised by the honourable senator are in one of those areas of judgment which I referred to in reply. The Governnment takes the view that the fact that Parliament has a role in this does stand as a very strong safeguard for any individual who might be out of favour with government. As I said in my reply to the second reading stage of the Bill, it is unusual for statutory appointments to be put at risk even if the appointments are terminable without reference to Parliament. The Government sees clause 1 7 as offering a very substantial protection for the individuals on the commission.

I will have another look at clause 11. I am reminded by one of my advisers of the point made by Senator Cavanagh. There is no provision to permit Parliament to disallow a direction. Once again the discipline which is imposed on the Government is that it is exposed to the public gaze. I think that is a substantial protection. It means that the Government is operating not in secrecy until the next annual report but in the knowledge that it will have to expose to the Parliament and hence to the public any direction which has been given. It is not the view of the Government that the Parliament should have the power to disallow such a direction.

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