1998-04-033816SENATE195501998-04-03The PRESIDENT(Senator the Hon. Margaret Reid) took the chair at 9.30 a.m., and read prayers.Condolences195519551955The PRESIDENTThe PRESIDENT10000PON/A10—Before proceeding, I wish to speak for a few moments about Kevin Chapman who died this week. The doyen of parliamentary broadcasters died on Tuesday at the age of 71. Many of us were not in the Senate while Kevin was a broadcaster, but I cannot imagine that there is anyone who had not heard his broadcasts and effectively knew him. He really was a pioneer of ABC radio, starting his career in Adelaide at the age of 21 where he worked for a time before going to Darwin. His friends at the time were a bit dismayed at him being sent to Darwin. They probably did not know much about it. They used to send food parcels to him in Darwin to make sure that he survived. Food was one of the things that Kevin really enjoyed. Darwin was a real challenge for a young broadcaster. Many of the items they took were landlined from the south or the south-east. Frequently that failed, so the broadcaster was left to his own devices to fill in the hours on radio, which he did. He became a much loved character in Darwin. He was the principal broadcaster for the 1956 Olympic Games and, subsequent to that, became principal sports broadcaster in Sydney for the ABC. He came to Canberra in 1957 and for 29 years was involved with the parliamentary broadcasts and on the ABC. Every night he had a different flower in his lapel on the ABC television news. He had a magnificent voice, the voice one associates with ABC radio: meticulous pronunciation and command of grammar—and he did it so well. For those of us who knew him about the parliament, we were sad when he retired after 29 years here, but he stayed on for a period doing the work on a part-time basis. I cannot quite remember when he retired, but it is a couple of years ago or so I think since he was doing some of the parliamentary broadcasts. He certainly was a character in radio and he was a character around Parliament House.I mourn his passing. I am sure all senators mourn his passing. He was MC at the wedding of our Deputy Usher of the Black Rod, Andrea Griffiths, as she was a friend from university days with one of his daughters. There will be many people in Canberra and around Australia who will have their favourite Kevin Chapman stories to tell.He had been in hospital having a knee reconstruction. As he was being discharged from hospital, he had a massive heart attack and died there. He was a man who enjoyed life. As I said, he enjoyed food. He enjoyed wine. I think he would be happy for me to say that he was a happy punter and he certainly enjoyed going to the races. I will miss him. For myself and for the Senate, I will convey condolences to his family.UNKNOWNHonourable senatorsHonourable senators—Hear, hear!Business19551955Motion (by Senator Campbell)—by leave—agreed to:That the order of the Senate of 26 March 1998, relating to the hours of meeting and routine of business for today, be varied to provide that the sitting of the Senate be suspended from 12.15 p.m. till 1 p.m.Notices195519551955Calvert, Sen PaulSenator CALVERT5F4TASLP10—On behalf of Senator O'Chee, pursuant to notice given at the last day of sitting on behalf of the Regulations and Ordinances Committee, I now withdraw business of the Senate notice of motion No. 2 standing in his name for six sitting days after today for the disallowance of the Therapeutic Goods Regulations (Amendment), as contained in Statutory Rules 1997 No. 401.Bills1956r4551956Debate resumed from 2 April, on motion by Senator Ian Campbell:That this bill be now read a second time.upon which Senator Bolkus had moved by way of amendment:At the end of the motion, add "but the Senate notes that:(a) The High Court of Australia in its 1992 Mabo decision, found that a system of native title to land emerging from the traditions, laws and customs of indigenous Australians pre-existed the legal system that has been implemented in the time since European settlement, and further found that native title has survived despite later grants of interests in some places, and is merged within our common law;(b) the Native Title Act 1993 was the first attempt to manage native title claims emerging from the High Court finding, and was inevitably destined to be amended in the light of practical experience and further Court decisions;(c) in taking office in 1996, the Government accepted the responsibility of integrating the concept, expression and exercise of native title into the social and legal framework of this nation, a responsibility that was initially taken up in 1993 by the Keating Labor government;(d) the Wik decision of the High Court in 1996 was an inevitable and desirable part of a process whereby an emerging body of case law gave better definition to a legal concept, and deserved a prudent and measured legislative response from the Government;(e) the response of the Coalition in government mirrored its response when in opposition in 1993, in that it chose a divisive, negative and politically opportunistic approach to an issue of historic importance;(f) the Government, in seeking to amend the 1993 Act, has been driven by a desire to appease sectional interests opposed to the concept of native title, rather than any aim of finding a workable model acceptable to all stakeholders;(g) the Prime Minister's self-styled "Compact with the miners and pastoralists" is a betrayal of the compact with the Australian people that is intrinsic to his office; (h) in rejecting the compromise offered by the amended bill passed by the Senate in December 1997, the Government added further dimensions of uncertainty and social division to a process that, to be successful, has always demanded government with insight, leadership and a sense of justice and equity;(i) the Government promoted needless uncertainty and potential economic loss in rejecting the validation provisions passed by the Senate in December 1997;(j) an ever increasing number of unsustainable multiple, overlapping and ambit native title claims continue to mount up on the Register of the National Native Title Tribunal as a result of the Government's failure to accept the workable threshold test contained in the 1997 Bill.(k) Australia's standing in the international community continues to be compromised by the Government's approach to native title that will see the erosion of the few rights our indigenous peoples have had recognised since European settlement, in a relationship otherwise blighted by their dispossession, the destruction of their cultures and social dislocation;(l) genuine reconciliation with our indigenous peoples will be impossible without fair and decent dealing with native title;(m) the bill before the Senate is fundamentally unsound unless substantial amendments are made, including: (i) amendments to ensure fair and constitutional validation, including provisions in respect of notice provisions and compensation on just terms; (ii) the enhancement of provisions which, whilst giving validation where necessary and certainty of tenure to all parties, preserve the character of the amended Native Title Act as a special measure for the benefit of indigenous Australians; (iii) the amendment of a multitude of provisions which detract from a fair and just balance of the rights and interests of all stakeholders and which compromise the amended Act's capacity to withstand constitutional and legal challenge; (iv) the reinstatement of an effective right to negotiate where there is dealing in land or water with exclusive or coexisting native title; (v) a clear and unambiguous provision to subject processes under, or authorised by, this Bill to the provisions of the Racial Discrimination Act 1975 ; (vi) the removal of those provisions that seek to impair or restrict indigenous peoples' rights beyond, or in spite of, the common law; (vii) the removal of gratuitous real or de facto extinguishment of native title; (viii) the removal of legalistic constraints on the operation of tribunals or courts which have the effect of denying indigenous people a fair chance to pursue native title claims; (ix) the removal of restraints on indigenous people registering native title claims that could be successfully pursued in common law; (x) the removal of provisions that would remove processes under the Act from Commonwealth oversight and place them for management and determination in a multitude of State-controlled bodies; and (xi) the removal of unreasonable impediments to indigenous people having access to their traditional lands; and(n) in the event of the failure of this Government to proceed with such amendments, a future government will be confronted with an even more complex and demanding task in forming and enacting legislation to address the resulting legal chaos, social division, and economic loss.09:36:001957Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I begin by thanking members of the Senate who have participated in this debate. In particular, I thank all coalition senators who have not participated in this debate.1X4WESTSenator West—What about those of us on this side?JX4Minchin, Sen NickSenator MINCHIN—There were many coalition senators very keen to express their views on this issue and to put the point of view as members and representatives of their states, particularly my Western Australian colleagues who have about 82 per cent of their state under claim. But, in the interests of facilitating debate on this matter and getting to the committee stage early, our colleagues agreed that there would be only Senator Boswell and me speaking from our side. I also note the comments from the other side and appreciate the cooperation of the opposition in facilitating the second reading debate. It is now almost six years since the High Court's Mabo decision, but native title remains a difficult issue for Australians. It is a common law property right based on the traditional laws and customs of Aboriginal people and Torres Strait Islanders. It is complex, involving the interaction of a common law right, whose actual content, location and holders are still generally unknown, with Australia's statutory land law and management systems. It also evokes considerable passion. Native title is clearly an issue which requires of this parliament an approach based on fairness, balance and certainty. The government believes that this bill is a fair, balanced, equitable and practical response to the issues which have emerged since 1993.The debate has progressed considerably since the 10-point plan was formulated now almost 12 months ago. It is now generally conceded that there are substantial deficiencies in the current act—principally that the current act was not designed to deal with native title which coexists with other rights and interests on the same land. Four years experience has shown us that some procedures in the current act are constitutionally questionable and that others work inappropriately and inefficiently, if at all. Four years after the act came into effect, there are still only two determinations of native title on the Australian mainland. The Native Title Act is not working for the benefit of Aboriginal people, and it must be fixed now.It is also now more widely conceded that the Native Title Amendment Bill 1997 [No. 2] does not override or overturn the decisions of the High Court in Mabo and Wik. The government has always rejected these suggestions and the recent Larrakia decision of the Federal Court supports the government's position. The act, as amended by the bill, will recognise and protect native title in Australia, including coexisting native title on pastoral lease land. But the bill provides, as the court held in Wik, that the lessee's rights do prevail.There is also greater recognition that ongoing uncertainty about native title is damaging our social and economic life. The situation should be resolved by clear, precise legisla tion. This bill provides the way forward. It builds on the common law but adds a much greater level of certainty and predictability for native title holders, pastoralists, miners and governments.The opposition voted for the bill as amended by the Senate last year and has indicated that it thought that outcome an acceptable one. If this continues to be its position, then many of the issues which were so hotly debated in this chamber at the end of 1997 need not be revisited. Over 900 amendments were proposed in the Senate debate last time this bill was considered and 217 were passed by the Senate. The bill now before the Senate incorporates 107 of these and, on fair and objective considerations, these amendments represent genuine improvement to the bill.Over recent weeks, the government has invested significant efforts in talking to various parties in an attempt to reduce the remaining areas of disagreement as much as possible. We have done so in the hope that this time consideration can be much more focused and, hopefully, more productive. The government will be moving amendments reflecting the outcome of those discussions, in many cases to clarify the intention and operation of the bill's provisions, and to promote a sensible, workable outcome because, whatever emerges from this chamber, it should mean solutions, not more problems.There are four principal areas of disagreement between the government and the Senate: the registration test, the right to negotiate, the Racial Discrimination Act and the sunset clause. It is essential that the Native Title Act contain a registration test of sufficient rigour to ensure that only bona fide, legitimate claims are registered and have access to the right to negotiate process.Multiple, overlapping, competing claims covering vast areas of Australia, many claiming exclusive possession where there are other interests in the land, are dividing Aboriginal communities and causing racial tension in many parts of Australia. We cannot accept the Senate's watering down of the test, but we have proposed amendments which clarify its operation in a way that should be acceptable to the Senate.The bill maintains the right to negotiate for mining and some compulsory acquisitions in areas where native title may be a high level right approaching ownership of the land; that is, our bill maintains the right to negotiate on some 39 per cent of Australia. But the right to negotiate is operating as a significant impediment to development. To apply this complex, legalistic, drawn-out process on up to 79 per cent of Australia for all exploration and mining, as suggested by some of our opponents, will have potentially disastrous social and economic consequences. The government does not believe that the full right to negotiate is appropriate or fair where native title can only consist of much more limited rights and, in particular, where native title can only be a coexisting right. In such cases, state and territory governments should be able to put in place alternative processes which provide native title holders with the same procedural rights as other title holders.Our opponents are deliberately creating the impression that if native title holders do not have the full right to negotiate then under the government's bill they get nothing and their native title rights are rendered useless. That, of course, is completely false. The proposal that the right to negotiate not apply on pastoral lease land and in towns and cities has no effect on the ability of native title holders to claim their native title rights in relation to these areas, and to exercise their rights to the fullest extent possible.The proposed application of the right to negotiate will simply mean that, for future economic development on that land, native title holders will have exactly the same procedural rights as the pastoral lessee with whom they share the land, or a freeholder; that is, native title holders would have the same procedural rights as others and often the same rights as those who hold the highest form of interest in land known to the common law—freehold. In the government's view, this is a just and truly non-discriminatory position.The bill will introduce a much greater level of certainty and predictability to native title issues. We believe that this will deliver greater benefits to native title holders and other interests. The government is not pre pared to jeopardise these benefits by incorporating amendments which are clearly inappropriate, uncertain or ambiguous. This is why we cannot accept the Senate's amendment subjecting the Native Title Act to the Racial Discrimination Act.The government is not neglecting its national and international obligations to prevent racial discrimination, including through the Native Title Act. But the provision passed by the Senate last year is ambiguous and uncertain, and its effects are unclear. Further, the non-government parties do not appear to even agree on what the Senate amendment actually means. On one view, it is simply an interpretive provision. If this is the intention, then there is no reason to amend the current provisions regarding the Racial Discrimination Act. On another view, the amendment may allow actions to be attacked in court, notwithstanding complete compliance with the Native Title Act. No responsible government could accept this risk. It was not acceptable to the Labor government in 1993 and it remains unacceptable now. The Senate has an obligation to make clear, precise laws, especially in this area where certainty and predictability are so much needed.Finally, the government cannot accept the Senate's removal of the sunset clause. In the four years since the Native Title Act came into operation, there have been over 700 claims lodged, covering over 50 per cent of Australia. The government—and I believe the people of Australia—regard it as eminently reasonable and fair to propose that any further claims made under the Native Title Act should be lodged within the next six years.All the government is saying is that native title claimants who believe they have a reasonable claim should lodge it within the next six years if they wish to take advantage of the benefits of the Native Title Act. Once registered, the claim will remain on the register until there is a final determination. This is an eminently fair and reasonable proposal, particularly given that there is no sunset applying to ordinary common law claims.Given opposition remarks on this issue, I would like to specifically address the matter of the requirements of the constitution's section 57. If the Senate fails to pass this bill—or passes it with amendments to which the House of Representatives will not agree—then the bill will comply with the requirements of section 57, which is available to resolve disagreements between the houses. The requirements of section 57 are clear and precise. These requirements have been met.The original bill was passed by the House in 1997. The Senate made significant amendments when it considered it last year. The House of Representatives stated in the clearest possible terms on 6 December 1997 that it disagreed with many of those amendments. Three months elapsed since the House indicated that disagreement and laid the bill aside. The bill was then reintroduced into the House. It was in the form of the original proposed law, with some of the amendments made by the Senate in 1997, as clearly permitted by section 57. It has passed the House of Representatives unamended. It is now before us.The government does not seek a double dissolution and joint sitting in relation to this bill. We continue to hope that it will prove to be unnecessary. But, if the continued opposition obstruction of this bill makes a double dissolution necessary, the preconditions will have been met.I note that the opposition continues to argue that the bill is unconstitutional, notwithstanding the resounding defeat of their arguments on the Hindmarsh Island Bridge Act in the High Court yesterday. They were wrong about that act, as they are wrong about this bill. A significant majority of the court held in Kartinyeri that a law passed under the races power can be amended under that power, or that the races power allows detrimental as well as beneficial laws, or both. The decision supports the government's position, all the more so because the Native Title Act, as amended by this bill, will continue to be beneficial to native title holders.The bill preserves and respects the common law of native title, in line with the High Court's Mabo and Wik decisions. It recognises and protects native title so that it can still be claimed, in line with Wik, over 79 per cent of Australia. Unlike the current act, it specifi cally recognises and protects potentially coexisting native title on pastoral lease land—over 40 per cent of Australia's land area. It ensures that native title cannot be extinguished by a government grant of additional primary production rights to a leaseholder. The bill retains the right to negotiate for land that has never been alienated and where native title may be equivalent to full ownership. It provides native title claimants with the same procedural rights as the lessee for mining on pastoral leases. It guarantees registered claimants' existing access to pastoral lease land, pending a native title determination. It provides a clearer claims process and deals with the overlapping and multiple claims that are dividing indigenous communities. It recognises and strengthens the role of native title representative bodies to facilitate the recognition and protection of native title. And the bill enables the legally certain agreements that are essential for coexistence.On other constitutional issues raised in relation to this bill, it should be noted that it provides significant notification and compensation rights, in some cases greater than those contained in Labor's 1993 act. Further, it meets the requirements of the constitution for just terms for any acquisition of property. The government is confident of the constitutionality of the bill, and we have released expert legal advice supporting that view. If the opposition is so confident of its arguments about the constitutionality of our legislation, then it should do what it did with the Hindmarsh Island legislation: let this bill pass the parliament and ask the High Court to rule on the matter. That will avoid a double dissolution election on this issue and allow judicial consideration of the opposition's objections. I should add that this morning the Prime Minister (Mr Howard) has announced, in furtherance of our view, that the federal government would be prepared to fund the challenge to this legislation to allow the High Court to rule finally on the matter.This bill restores certainty to Australia's land management system in a manner which is fair, balanced and in the overall national interest. It recognises and protects native title in Australia, including native title on pastoral lease land. It balances the aspirations of Aboriginal Australians with the interests of others in the community. It recognises the legitimate needs of elected local and state governments, and farmers, pastoral lessees and miners for certainty in land management. It is based on a recognition that a positive environment for our mining and pastoral industries is essential for the economic wellbeing of all Australians and, most particularly, Aboriginal Australians. Most importantly, the bill will deliver a more certain and secure foundation for the recognition of native title in Australia.09:51:001960Bolkus, Sen NickSenator BOLKUSXE4SAALP00—by leave—I do not intend to speak again on the amendment other than to indicate that, in discussions with some of the other players in the Senate, I have deemed it appropriate that we try to amend the amendment in three or four minor ways. The first amendment to my amendment is in respect of paragraph (i). It currently reads:the Government promoted needless uncertainty and potential economic loss in rejecting the validation provisions passed by the Senate in December 1997 . . . I suggest that it should read:the Government promoted needless uncertainty and potential economic loss in rejecting the alternate validation provisions proposed by the Senate in December 1997;So we seek to add the word `alternate' before `validation' and to change the word `passed' to `proposed'. Those are the two amendments in paragraph (i).I also seek leave to add after paragraph (j) the words `as amended by the Senate' and to amend paragraph (m)(i) to include the word `procedures' after `validation'. So the paragraph will read:(i) amendments to ensure fair and constitutional validation procedures, including provisions in respect of notice provisions and compensation on just terms . . . They are the three sets of amendments I seek to make to the substantive amendment.10000ACTING DEPUTY PRESIDENTThe ACTING DEPUTY PRESIDENT (Senator Hogg)—Is leave granted to amend the amendment?Leave granted.Amendment, as amended, agreed to.Amendment (by Senator Brown and Senator Margetts) proposed:Omit all words after "That", substitute: "in view of:(a) the insufficient consultation and negotiation with Aboriginal and Torres Strait Islander people regarding changes to the Native Title Act 1993 and the entire issue of indigenous land justice; and(b) concern that passage of the Native Title Amendment Bill in any form will further diminish Aboriginal and Torres Strait Islander native title rights and will greatly impede the process of reconciliation and healing between indigenous and non-indigenous people; and(c) the fact that there are many unresolved issues with regard to indigenous sovereignty and unfulfilled promises with regard to the implementation of a treaty process with the indigenous people of this continent;the bill be withdrawn until a comprehensive process of negotiation and agreement with the many indigenous communities of this continent has taken place".DX5MARGETTSSenator Margetts—I am not seeking to speak to that. I need a point of clarification about the previous vote. Did the government vote for the amendment? I am not sure if you noticed that we did not and you made a call.10000ACTING DEPUTY PRESIDENTThe ACTING DEPUTY PRESIDENT—I called the ayes on that particular occasion.DX5MARGETTSSenator Margetts—Why?10000ACTING DEPUTY PRESIDENTThe ACTING DEPUTY PRESIDENT—The question is that Senator Brown's amendment be agreed to. Those of that opinion say aye, the contrary no. I think the ayes have it. Is a division required?09:55:001961Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—If we are going to have a division, it is quite clear from what Senator Margetts has said that the result of the previous division would have been different had you been aware that the coalition and the Greens were both saying no. If we are going to have a division, I suggest that we recommit that vote. I seek the leave of the Senate to do that.10000ACTING DEPUTY PRESIDENTThe ACTING DEPUTY PRESIDENT—Is leave granted for the recommittal?Leave not granted. Question put: That the amendment (Senator Brown's and Senator Margetts's ) be agreed to.10:01:00The Senate divided. (The President—Senator the Hon. Margaret Reid)8Allison, L. Bartlett, A. J. J.Bourne, V. *Brown, B.Margetts, D. Murray, A.Stott Despoja, N. Woodley, J.49Abetz, E. Alston, R. K. R.Bolkus, N. Boswell, R. L. D.Calvert, P. H. *Campbell, G.Campbell, I. G. Carr, K.Chapman, H. G. P. Collins, J. M. A.Colston, M. A. Conroy, S.Coonan, H. Crowley, R. A.Denman, K. J. Eggleston, A.Ellison, C. Evans, C. V.Faulkner, J. P. Ferguson, A. B.Ferris, J. Forshaw, M. G.Harradine, B. Heffernan, W.Herron, J. Hogg, J.Kemp, R. Lightfoot, P. R.Lundy, K. Macdonald, I.Mackay, S. McKiernan, J. P.Minchin, N. H. Murphy, S. M.Newman, J. M. O'Brien, K. W. K.O'Chee, W. G. Parer, W. R.Patterson, K. C. L. Quirke, J. A.Reid, M. E. Reynolds, M.Schacht, C. C. Sherry, N.Synon, K. M. Tambling, G. E. J.Tierney, J. Watson, J. O. W.West, S. M.Question so resolved in the negative.10:04:001961Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—I seek leave to recommit the vote on Senator Bolkus's second reading amendment.10000PRESIDENTThe PRESIDENT—Is leave granted?10:04:001961Faulkner, Sen JohnSenator FAULKNER5K4NSWALP00—In the circumstances, leave is granted. If there were to be a division on that second reading amendment—and that would be a matter for Senator Bolkus and others to give consideration to—I suggest that the bills be rung for four minutes.10000PRESIDENTThe PRESIDENT—They would be, Senator. As leave is granted, I put the question: that Senator Bolkus's amendment be agreed to.Question resolved in the negative. Original question put: That the bill be now read a second time.10:10:00The Senate divided. (The President—Senator the Hon. Margaret Reid)48Abetz, E. Alston, R. K. R.Bolkus, N. Boswell, R. L. D.Calvert, P. H. *Campbell, G.Campbell, I. G. Carr, K.Colston, M. A. Conroy, S.Cook, P. F. S. Coonan, H.Crowley, R. A. Denman, K. J.Eggleston, A. Ellison, C.Evans, C. V. Ferris, J.Forshaw, M. G. Harradine, B.Heffernan, W. Herron, J.Hogg, J. Kemp, R.Lightfoot, P. R. Lundy, K.Macdonald, I. Macdonald, S.MacGibbon, D. J. Mackay, S.McKiernan, J. P. Minchin, N. H.Murphy, S. M. Newman, J. M.O'Brien, K. W. K. O'Chee, W. G.Parer, W. R. Patterson, K. C. L.Quirke, J. A. Ray, R. F.Reid, M. E. Reynolds, M.Schacht, C. C. Synon, K. M.Tambling, G. E. J. Tierney, J.Vanstone, A. E. West, S. M.8Allison, L. Bartlett, A. J. J.Bourne, V. *Brown, B.Margetts, D. Murray, A.Stott Despoja, N. Woodley, J.Question so resolved in the affirmative.5F4CALVERTSenator Calvert—On a point of order, Madam President: I think it is an opportune time to remind the Senate that Senator Brown failed to declare an interest in this matter.Bill read a second time.QD4BROWNSenator Brown—Madam President, on that point of order, I claim to have been misrepresented. But Senator Calvert does raise a very real point in that any member of the Senate who did not declare an interest in that vote would be in breach of a standing order and in contempt of the Senate. I have not breached that standing order because I do not have an interest which would be enhanced by that vote—or certainly by me voting against it. But Senator Calvert has raised a very important point. I will ensure, on the very next vote, that I raise the matter before the vote takes place so that all members can be warned about it.10000PRESIDENTThe PRESIDENT—Order! There is no point of order.LD4ALSTONSenator Alston—On the point of order: this is an abuse of the process. If Senator Brown was seeking to clarify his own position, what Senator Calvert was raising was Senator Brown's involvement in two companies, which, it is said, constitutes a conflict of interest. If he is going to take the opportunity to stand up, instead of wasting time he should be saying whether or not he is involved in those companies now or whether he has resigned.10:15:001962Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—I move:That consideration of this bill in the Committee of the Whole be made an order of the day for a later hour this day.We are seeking to delay consideration of the Native Title Amendment Bill 1997 [No. 2] in committee because the clerks in the Table Office who are preparing the running sheet—which, honourable senators would know, is a very detailed matter with this bill because there is a range of amendments from all sides of the chamber—have informed us that that task will take at least another hour, possibly an hour and a half. In discussions we have agreed that it would be sensible to move on to another piece of legislation while that running sheet is being prepared. That is the reason behind this motion.Question resolved in the affirmative.Miscellaneous1963196310:16:001963O'Brien, Sen KerrySenator O'BRIEN8O6TASALP00—by leave—In noting an answer to a question I asked yesterday about the Australian pork industry, I referred to a letter from a farmer who had attended a meeting of the south-east regional conference of the Liberal Party in South Australia. When I checked the Hansard late yesterday, I noted that I had referred to that letter as being written to me. While the letter was provided to me, it was not addressed to me.Bills1963r3951963Debate resumed from 9 March, on motion by Senator Newman:That this bill be now read a second time.10:17:001963Forshaw, Sen MichaelSenator FORSHAW656NSWALP00—The Health Legislation Amendment Bill (No. 2) 1997 seeks to amend the National Health Act 1953 and the Health Insurance Act 1973. There are also minor changes to the Social Security Act 1991 and the Veterans' Entitlements Act 1986. A range of matters is encompassed within the bill, and some of the changes to the health insurance legislation are substantial. The primary aim of the legislation is to regulate insurance products, particularly those that threaten the community rating basis of private health insurance.The opposition is generally supportive of the provisions in the bill. However, there is one particular matter that we are opposed to—and an amendment in my name has been circulated—and that is schedule 2 of the bill. I will deal with that in more detail a little later, but schedule 2 of the bill is that section which would remove the guaranteed 35-day provision for payment of acute care rates for patients in private hospitals.As I said, the opposition is generally supportive of the bill. For instance, the provisions which relate to the simplification of the billing system and the establishment of agreements between hospitals, practitioners and health insurers, which will provide greater information to patients and doctors about extra expenses, are matters that we are supportive of. We are hopeful that the legislation will work particularly to minimise gaps. We also note that underpinning the legislation is a commitment to ensuring that the professionalism of doctors is respected. In this regard, I just mention in passing the model at Melbourne Hospital.The bill also renames the Private Health Insurance Commissioner, who is henceforth to be called the Private Health Ombudsman—or maybe that should be `Ombudsperson'. In any event, we support that provision within the bill, as long as that office will make regular reports and the office has the opportunity to highlight issues of concern within the public domain.On a number of occasions, we have seen situations where, with the establishment of an ombudsman's office, whilst intended to have independence and be there as a public watchdog, quite often, particularly when they focus on matters of public concern, they suffer the brunt of government or the bureaucracy in seeking to limit their effectiveness. As I said, we are supportive of the establishment of the office but we put the government on notice that we will be watching very closely to ensure that the office has, and is able to exercise freely, impartially and independently, the powers that it is given.As I said at the outset, the main area of concern for the opposition in this bill is the clauses which relate to the removal of what is known as the 35-day rule in private hospitals. I refer to the document produced by the Information and Research Service of the Parliamentary Library and I will outline in the Hansard and for the benefit of the public and senators just what the current position is. The document on the bill states:Benefits may be paid under the Health Insurance Act 1973 at an acute care rate and also at a lower rate to a nursing home type patient . . . occupying a hospital bed. The Act presently defines a nursing home type patient as `including a hospital patient who has been in care for a continuous period exceeding 35 days but does not include a patient that has been issued with either a 3A determination or a 3B certificate' . . . A 3B certificate is a certificate issued by a medical practitioner certifying that the patient requires acute care.That is the current position. The documents continues:The Bill proposes that the present definition of a nursing home type patient be repealed and replaced with a new definition, under which `a nursing home patient is a patient in a hospital who is included in a class of person identified by the Minister by written notice but does not include a patient that has been issued with either a 3A determination or a 3B certificate.The Act presently requires that benefits be paid at an acute care rate for the first 35 days of a patient's hospitalisation regardless of whether acute care is actually provided. Measures in this Bill propose that this provision be removed and replaced with a regulation `that provides for determination of benefits to nursing home type patients at an appropriate level and structure (including that acute care benefits are paid when acute care is provided)'.To summarise that, this bill removes the current requirement that the benefits be paid at the acute care rate for the first 35 days of a patient's hospitalisation in a private hospital, regardless whether acute care is provided or not. In other words, currently the level of care may be more akin to the care provided in a nursing home situation, but for the first 35 days of that patient's stay in the private hospital acute care benefits are applied.We believe this provision has worked well as it ensures, firstly, no detriment to the patient and, secondly, appropriate funding for the hospital through the Medicare system. We are very concerned that removing this current guarantee will severely affect patients. For instance, having been hit as hard as they have been by this government over the last 12 months or more, particularly in respect of the changes to the nursing home arrangements and then further changes late last year when the government recognised that its proposals were simply not going to work, we now have a situation where elderly people particularly could be admitted to a private hospital and, because they are classified to receive a level of care more appropriate to a nursing home, even though they are not in a nursing home, may end up having to pay the difference between the charges of the hospital and the level of benefit paid for the stay in hospital.The ultimate winners from this proposal are the health insurance funds. It seems that this government is bending over backwards to assist the private health insurance funds at the expense in some cases of patients such as the ones that I am referring to. We do not believe that this measure is fair or equitable for the patients concerned. As I said, the problem with this section of the bill is that it will result in elderly people being forced to have out-of-pocket expenses because they cannot get entry into a nursing home at that particular time or they are on a waiting list and also because they cannot be covered for the full cost of care in the private hospital for those 35 days if this provision is removed.We understand that the health funds really do not want to pay acute care rates for patients who normally would be in need of nursing home care but who are admitted to, and staying in, a hospital. The health funds, naturally, argue that the difference between the nursing home subsidy and the acute care rate, which can be substantial, should not be subsidised by the health funds. Whilst that argument is understandable from the perspective of the private health funds, as I said, the real outcome of changing or removing the current guarantee will impact most severely upon the patients.For instance, under this provision a person admitted to a private hospital for specific medical reasons—they may have had a heart attack or a stroke—may within a week or two be reclassified as being non-acute. In that case, because the level of benefit payable drops—in some cases by as much as $400 a day—that patient may ultimately have to foot the difference. The government says that this affects only nursing home type patients, but we are concerned—and concerns have been expressed by such groups as those involved in schizophrenia awareness—about the impact of this upon persons with severe physical or intellectual disabilities.Yesterday the Prime Minister announced a package whereby the government would fund to the order of $270 million improvements particularly for carers, persons looking after older people or disabled people within the home. As we have pointed out, this injection of funds is really just putting back into the system money that had been taken out previously. We regard it as somewhat hypocritical that, on one hand, the government is making a major play about the injection of some $270 million into the system and yet, on the other hand, it is seeking to remove a provision which could substantially impact upon the very people that the government claims it is concerned about.We have seen over the past 12 months or even longer that the attitude of this government is to make the elderly pay more and pay more often simply to get appropriate nursing home care. The provision to remove the 35-day guarantee is of the same vain. Once again it strikes at the very people least able to cope.We are concerned that the age care assessment team could determine that a person needs a hospital bed and that subsequently that person could need to be moved to a nursing home but because of the delays and the procedures for reclassifying that person as a nursing home patient while still in the hospital our estimate is that out-of-pocket expenses for such a person could amount to many thousands of dollars before they actually get admitted to the nursing home. On the top of other charges that have been introduced by this government that is very substantial.We ask the government to reconsider its position on this provision and support our proposal to remove schedule 2 from the bill. That would, in turn, maintain the position as it currently is. That is the major and critical issue that we believe needs to be amended in this bill. As I said at the outset, we support the remaining provisions of the bill.I finish on the note that we continue to express our grave concern at this government's attitude to the most important issues of health care, the maintenance of Medicare and the adequate provision of nursing home accommodation, which our elderly citizens are entitled to. They should not be financially burdened in the way that this government is seeking to do. In the committee stage I will move the amendment that has been circulated in my name.10:34:001965Bartlett, Sen AndrewSenator BARTLETTDT6QLDAD00—I rise to speak to the Health Legislation Amendment Bill (No. 2) 1997 on behalf of the Australian Democrats, and particularly the Leader of the Democrats, Senator Meg Lees, who, as honourable senators would no doubt be aware, has been active in the health area for many years on behalf of the Democrats and would normally be the person addressing this bill. The bill, as has been outlined by previous speakers, makes some long overdue changes to a range of areas in the health system, particularly private health insurance and the private health sector. The Democrats have been concerned for many years about the inefficiency of the private health sector and, in particular, the out-of-pocket expenses associated with private health care.Back in 1995 the Democrats moved amendments, jointly with the government of the day, to the Health Legislation (Private Health Insurance Reform) Amendment Bill 1994 ensuring that hospitals and doctors were required to inform contributors of out-of-pocket expenses. For many years, the Democrats have recognised that out-of-pocket expenses create a major barrier to people taking out private health insurance and cause significant uncertainty and stress to consumers. On that occasion, the Democrats stated their concern that this amendment did not go far enough in removing out-of-pocket expenses altogether. However, it is gratifying to see that finally the government is today moving down that track.I should make the point that the government's first responsibility is to manage the public health system. This government has proved inadequate to this task. The public health system is clearly in crisis. Hospital waiting lists are out of control. We are hearing new reports every day of the increasing numbers of unnecessary deaths caused through the underfunding and mismanagement of the public hospital system. The Democrats believe the government would be better served by dealing with the public health crisis rather than by putting more time, energy and money into propping up the ailing private sector.On behalf of the Democrats, I would also like to take the opportunity while we are speaking on legislation in this area to call for a health audit to sort out the crisis that this government has caused in public health and to have an informed public debate about what Australians want from their public health services. This bill makes amendments in a number of areas, most of which the Democrats support.Our main concerns are with schedule 2 of the bill. The Democrats are very concerned that schedule 2 could lead to an inequitable financial burden being placed on older people who require nursing home care. Whilst the Democrats support the principle that care not received should not be paid for, we also recognise that the overhead and infrastructure costs in many hospitals are such that it is impossible to provide even basic care for the same cost as a nursing home. The Democrats believe that hospitals should be compensated adequately for the care they provide, but it is even more important to ensure that in the tussles between health funds and private hospitals about who pays for what that consumers are not the ones who lose out.The Democrats are not confident that schedule 2 will address the costing issue, and we have significant concerns about its impact on consumers. There are a number of issues to be worked out in relation to this schedule, and to date the government has not convinced the Democrats that it has the solution. I also believe that the government has to bear a large amount of the responsibility here. Do not forget that this schedule deals with nursing home type patients, older people who, by definition, should be in a nursing home. A nursing home will provide the level of care that these people need in an appropriate environment. They do not need to be in hospital, and they should not be kept in hospital except as a short-term measure while a suitable nursing home bed is found.However, as we all know, this government has a dismal record in the provision of nurs ing home care and has failed older Australians in this regard. The government's first priority should be to fund suitable nursing home beds for older people who need them, not to relegate these people to hospitals and then worry about who is paying for this care.Whilst schedule 2 will be dealt with further in the committee stage of the debate, I am happy to outline in my second reading contribution the Democrats' specific concerns with it. They include: the amount of benefit paid by a health fund once a person has been classified as a nursing home type patient, what protocols will be put in place to ensure that these older people and/or their carers are informed of the assessment and of any financial impact it may have on them, the specific ramifications for people in rural areas and others where there is a severe shortage of nursing home beds available and what provisions there are to ensure that the maximum level of copayment that will be required by an older person once they have been classified as a nursing home type patient is the same regardless of whether they are in a nursing home or a hospital. Older people should not be penalised because the government has failed to provide sufficient nursing home type accommodation.We are also concerned that there needs to be a clear provision that an assessment will not result in a retrospective imposition of costs and a guarantee that the application of this schedule will not result in older people being forced to leave hospitals once they have been classified as nursing home type patients because the hospital can no longer afford to keep them. That is a reasonably long list of concerns and, I believe, fairly significant issues that need to be addressed. As these issues have not been resolved by the government, the Democrats will be voting to remove schedule 2 from this bill. But, as I said earlier in my contribution, we are happy to support all the other aspects of this particular piece of legislation.10:40:001966Crowley, Sen RosemarySenator CROWLEYZF4SAALP00—I rise to speak on the Health Legislation Amendment Bill (No. 2) 1997 . My colleague Senator Forshaw has taken us through the principal intentions of the bill—to amend the National Health Act and the Health Insurance Act and to change the Social Security Act and the Veterans' Entitlements Act. The bill will do a number of things. I would certainly like to talk about the proposal to remove the requirement that the payment of benefits to private hospitals be at an acute care rate for the first 35 days of the patient's stay, regardless of whether acute care is provided. That is a very disappointing proposed change. On the one hand you can see an argument for it being reasonable and all of those sorts of things, but at the moment we have an arrangement in place that has worked pretty well for many people. It was put in place after considerable discussion and deliberation.We all know that many people who find themselves in hospital have a need to move on to a nursing home bed and they are not going to find that bed easily. There is always a wait of a couple of weeks to try to match the patient to the bed, particularly in terms of locality. There may be a bed in a rural area, but that is of no use to a person in an urban area. In particular, there may be a shortage of beds in a rural area to which people living in and around that area would want to have access. Over times past, the arrangement of the 35 days has meant that there has been some flexibility in trying to deal with people with that need in a fairly humane and caring way.It is a bit hard to know why there is this proposed change. It says to me two things—it is some kind of money saver and it is part of a mean-spirited approach to optimal health care. Minister, could you tell us the reason for intending to put this in place, particularly what savings are expected, who will benefit from those savings and what kind of counter argument you have for the many people who have written to me complaining about this proposed change? I would like you in your response to make clear the arguments for why there is any need to change.The other point that caught my eye when looking through the proposals for this bill is the extension of the waiting period for benefits for obstetrics from nine months to 12 months. There are some very interesting expressions for people who anticipate that they will need obstetric care—cream skimmers; duck in, get your private health insurance for when you need it and duck out. They are one group of people who want private health insurance when for the large part of their lives they do not need it. Many expectant mothers anticipating the need for assistance at the birth of their baby have made the choice that they would like the support and backup of private health insurance. They do not want it for anything else in their lives, but they do want it for obstetric care.Extending the waiting period illustrates exactly the challenge we have in private health insurance. Private health insurance has become an absolute dead package. It has long since passed its use-by date. People are leaving it in droves. The cost is going through the roof, and people are saying, `How can we make private health insurance more attractive?' Here is a small group of people who are indicating that they do find private health insurance attractive; that is to say, they like the comfort or the assurance of private health insurance for the period of pregnancy, childbirth and shortly thereafter.I find it interesting that nobody in the private health insurance industry has approached the minister with an alternative proposal on how to market private health insurance to this specific group of people. Over the years, there has always been an indication of a large sympathy for parents having private cover for childbirth. There are, of course, an increasing number of people who find our major women's and children's public hospitals more than sufficient to the task—particularly, too, as most of the private specialists would be the people they would meet in the public hospital sector. It would be interesting if, for once, somebody in this area proposed a change in the way private health insurance is packaged, proposed or marketed, instead of the old, `Let us just extend the waiting time.' It is really in the nature of punitive—that is, `If you are going to take our benefits, then you're going to have to pay to get in and you're going to have to stay a long enough time.'I do believe it is important to start challenging private health insurance to be much more aware of what the community needs and not necessarily proceed the way it is proposed in some parts of this bill. I certainly think it is clear evidence that private health insurance is past its use-by date. It is a very bad package indeed. I made some comments about this in previous speeches and I am very prepared to make them again.The central objective of this bill is to make private health insurance more attractive to consumers to make it better value for money. Try telling that to the families of Australia who have been leaving private health insurance in droves. Senator Herron is in the chamber and I note that, by way of passing comment the other day, he did correct his outrageous claim that it was under the Labor government that private health insurance premiums rose 100 per cent.VW4HERRONSenator Herron—One hundred and forty-four per cent.ZF4Crowley, Sen RosemarySenator CROWLEY—That is very interesting because you came in and said it was not that and you were quite wrong. Senator Herron, I do urge you to be accurate because, if you have to come in here and correct it a number of times, it is not helpful to the debate. What you and I should be able to agree about is that the cost of private health insurance now means that it is well beyond the affordability for most families. It is not at all assisted by your government's decision to offer $600 million a year by way of rebate. That has done nothing to stem the flow from private health insurance. One of the things that it has been associated with—and one might even be inclined to argue causal of—has been the dramatic increase in the price of private health insurance. It is just not possible for families who are doing it tough to find up to $40 a week for family cover for private health insurance. They are not going to do it, and they certainly will not do it when, down the road, there is a public hospital that covers all their needs at no further cost to them.The way people are dealing with this is that they have realised that under Medicare they are protected from health bills. Under private health insurance, it is the only way you will get a health bill. The community are not nongs. They know that. As I explained here the other day, I had the pleasure of listening to Access Economics take us through some of the economics of health insurance and health policy at an AMA dinner in Parliament House a couple of weeks ago. The little scale was very nice. If you are an average citizen in this country, you pay your tax, you pay your Medicare levy and, if you choose nothing further, that is it—you can go to the public hospital system, you can see your doctor and so on. If you actually buy private insurance, you pay your taxes, you pay your Medicare levy, you pay your private health insurance premium and then, after you return from hospital, you pay your bills on top of that. It is just madness. Nobody—but nobody—would persist with that kind of scheme. What are people offered by way of encouragement to stay with private health insurance? You will get the doctor of your choice and you may have to spend less time on a waiting list to get access for elective surgery in hospital.Most people recognise that, in all of our public hospitals, the standard of medical care is very high. They do not have to worry that they will be getting second-rate treatment. Indeed, our public hospitals are standard centres of good health care and most people are beginning to recognise—as I have just said, too, about obstetrics—that, very often, exactly the same specialist would provide the care for them in the public area as they would be able to choose under private health insurance. Nobody is going to suggest that public hospital care is a second-class rating. Indeed, if you are needing emergency care, intensive care or resuscitation after a heart attack, if you break a bone or a leg or if you have an accident of that sort, you invariably go to our large public hospitals and that is where the care is provided. So people know that they are covered.People have not forgotten that, after seven years of Mr Fraser's Liberal government and five different health plans, two million Australians had no protection against health costs at all. Two million Australians had no insurance. Under Medicare, everyone does. Senator Herron, you know that, before the last elec tion, you promised everybody that you would protect Medicare because, I would have to say, even you finally got the message that the community likes Medicare.Medicare gives the community exactly what they want—that is, protection from big bills. The real problem in the health area is that, when you are sick, you have got enough to worry about. If it is a child, parents fret, and they will continue to fret until that little one has recovered or at least a program for management of the illness is under way. If you have got elderly relatives who are sick or if you yourself are sick, you know that your main focus of worry is on their health or your own health. Will I get better? Will the pain go away? When can I walk again? The last thing you want loaded on top of that worry about your own health or the health of your relatives is the worry about whether you can afford to pay for care. Medicare took that worry away. Private health insurance has been trying to keep a piece of the action and it has been losing badly. The premiums have been going through the roof, and the government's $600 million per year to provide rebate and assistance has been completely lost in the first round of increases in the cost of those premiums.The main argument that people use to maintain private health insurance is waiting lists. I think it is very important to place on the record, once again, the facts about waiting lists. You know, Senator Herron, in other areas you have been challenging me to look up answers to questions. I have, indeed. What is more, I have looked at your questions and some of the things you have said. If push comes to shove, I will bring them all here, but I do not want to waste people's time on that.VW4HERRONSenator Herron—You are now, Rosemary.ZF4Crowley, Sen RosemarySenator CROWLEY—Excuse me, Senator Herron. What we have said all along is that the most important thing is not the numbers on waiting lists, which are very doubtful figures anyhow, but the time that people have to wait. You know—and I can get you the quotes—when you have actually said that, Senator Herron. It is very important. If we had one million people on a waiting list and each one had to wait for only a week, there would be no problem. Our concern is that 10 people might have to wait two years. That is the important thing; not the number on the waiting list but the time people on the waiting list have to wait.I have sought an answer from the federal health department. I have asked them, for example, how many persons are waiting for surgery in South Australian public hospitals on 1 November 1997, 1996, 1995 and 1994. The answer from the department reads:The Commonwealth does not hold this data. However, it should be noted that waiting lists are a poor indicator of hospital and health system performance which do not necessarily provide an accurate indication of the problems relating to access to elective surgery. Many hospital admissions, including elective admissions, occur without the patient ever being on a waiting list.It goes on to say:It is more appropriate to focus on admitting people to hospital within clinically appropriate times than on the number of people waiting at any point in time.It cannot be said enough: the data about waiting lists is very rubbery indeed. I have heard your side of parliament in the last couple of weeks tell me that there are 50,000 on waiting lists, 100,000 on waiting lists and a good middle of the road figure of about 70,000 on waiting lists. We do not know. The Commonwealth can ring the states and ask: what are your latest figures on the number of people waiting? But they should give that away. As I remember, Senator Herron, the number of times you accused us of scaremongering about waiting lists can be exactly matched—indeed I would say exceeded—by the scare campaign run by you when you had the better reason for running a scare campaign about waiting lists.I think it is long since past the time when we should have some reasonable discussion about health in this country. We should reasonably talk about points that you have raised on occasions and of course pick up on points that others of us have raised for years before. You know, Senator Herron, that on the whole I agree that you are pretty reasonable about this, except when you forget to answer questions. The point is that there are many people who are living longer in this country and are more likely to need surgical procedures.There are many more procedures available to people. New technology means that we can now do many more procedures. Many more people are having day surgery, so the number of operations in hospital is dramatically increasing. Nobody in this country wants either the Labor Party or the Liberal Party, whichever is in government, to stand up and say, `We can't afford to help you.' What we might have to say is: it is going to take time to help you. But the costs of these new procedures are significantly increasing and they are very important.One area that I think highlights this is the management of eyes. People who have corneal blindness or who have other needs for eye surgery, instead of having a one hour or three hour eye operation, can now have a procedure that will take less than half an hour sometimes but certainly less than an hour. Many more people are appearing for assistance with their eye operations. It certainly means a dramatic difference in the quality of life for people who can have their sight restored.It also means increased costs to the taxpayers. It is about time we ask the taxpayers: are you prepared to support the costs? At the moment people are saying to us that they are not prepared to pay the horrifically expensive private health insurance, particularly when so many of them expect that they will never use it. It has passed its use-by date, Senator Herron. It is no help.10000ACTING DEPUTY PRESIDENTThe ACTING DEPUTY PRESIDENT (Senator Calvert)—We do know that Senator Herron is here but there is also a chair here and I ask you to address your remarks through the chair.ZF4Crowley, Sen RosemarySenator CROWLEY—Mr Acting Deputy President, I hate to think you were overlooked. I beg your pardon and thank you for that assistance. I was making the point that I think it is important that we have some facts about this matter. One of the areas that has offended me is listening to some of the monumental misrepresentations, which is a euphemism for the word `lie', coming from some people on the other side. For example, they have said that nothing under the Labor government was done to address the waiting list difficulties. The waiting list difficulties were addressed by the Labor government on a number of occasions.One particular occasion was when former Minister Blewett provided $40 million to be matched by the states and dramatically reduced the waiting lists. Waiting lists were reduced for eye patients, particularly pensioner patients, in the Illawarra region in New South Wales. The private doctors and specialists agreed with the government that they would operate on all the pensioners and run down the numbers on that waiting list; not so much to reduce the numbers on the waiting list but to reduce the number of people who were waiting to be able to see properly and therefore get on with their lives in a much better way.I have to say to my eternal shame that the doctors in South Australia refused to cooperate with the state and Commonwealth government and the private hospitals. They flatly refused to operate on Medicare patients in private hospitals. That, I think, is one of the real sticking points. We really have to address the main issue here. If there are empty or unused beds in private hospitals, why is it that Medicare patients are not able to access those beds? Why is it that privately insured patients have full access to our public hospitals, no questions asked. We want no hierarchy of patients according to how much they can pay. And, as I think everybody on this side would agree, that is absolutely right.It is time the Liberal government set out to achieve justice in health care so that everybody has access, not just those who can afford it. It is also time you took a look at assisting patients instead of worrying them into further illness with the increased costs. For elderly patients in particular, the decision about section 2, the 35-day acute bed changes, is just a prime example of the mean spiritedness of this government.11:00:001970Herron, Sen JohnSenator HERRONVW4QLDLPAboriginal and Torres Strait Islander Affairs10—That was all very interesting, but it had nothing to do with the Health Legislation Amendment (Health Care Agreements) Bill 1998 before the chamber. But I can understand Senator Crowley. It was the first time I had heard her speak in two years. She has had a blow of the pipes this morning and feels good about it. I welcome that, because it demonstrates yet again that she is locked in the past. As a matter of fact, my spirit soared when I heard Senator Forshaw because I thought at last, as the current phrase goes, that the tectonic plates might have shifted in the Labor Party in relation to health care. Then I heard Senator Crowley, and I regret to say that we are back where we were before.I would suggest that Senator Crowley contact Mr Mark Latham and Mr Lindsay Tanner, who at least have some idea of shifting from the past. We have heard that terrible diatribe which I heard from Senator Crowley for the last eight years. She is locked in the past. It is time she started reading and, more importantly, started going out into the industry to see what is going on in the hospital system of this country, because it has changed. Senator Forshaw is aware of that. I am aware of that because of what he had to say. At least he stuck to the bill.I hope Graham Richardson, the former Minister for Health in the Labor government, hears this debate. I well recall him when he was health minister trying to persuade then Prime Minister Keating of the essence of what Senator Forshaw was saying that there is a place for private health insurance. It is well on the record that Prime Minister Keating did not have private health insurance because he said that he had paid his Medicate levy and that he was entitled to go into the public hospitals. Of course he never did that. He went to private hospitals.He did what is occurring out there in the real market, and that is that about 14 per cent of people in the leading private hospital in Brisbane pay for their own care. They are self-insured. They actually go privately. So to equate the level of private health insurance to what is actually occurring out in the marketplace in private hospitals is irrelevant. It has been static for about 13 years in Queensland. Between 29 per cent and 30 per cent of people have retained private insurance, and that includes a lot of pensioners because they want freedom of choice of doctor and freedom of choice of hospital. Poor old Senator Crowley is locked in the past. Talk about being palely eolithic or concerned about the ideology of the last hundred years of the Labor Party. She has not shifted. She is still on about the necessity of maintaining the public hospital system. We agree with that in the sense that there is a desperate need to get it back to where it was when the Labor Party came into power and intentionally set out to destroy private health insurance, particularly by removing the bed day subsidy. It is on the record, no matter how much she talks about it, that when the Labor Party came to power 68 per cent of the population were insured. When they went out it was down to about 36 per cent because of their deliberate policy to try to destroy it.Before getting off the subject of Senator Crowley, I should mention that she asked why these things were happening under this government. For heaven's sake, we have been in government for two years. The Labor government was there for 13 years. It is going to take us more than two years to fix things up, as we have had to do in so many areas.Senator Crowley talked about private cover for childbirth. This bill does cover that aspect. What we are trying to do is stop the hit-and-run people. One of the problems with rising health insurance is that a lot of people, which is reasonable under their circumstances, come in for a short time and then get out. They are taking more money out of the system than they are putting into it. One of the other problems is that the majority of people who are insured are in the older age group and they are taking more out of the system than they are putting into it.Young people are leaving it in droves because, as they can see, it is probably better not to privately insure. In fact, for childbirth, if you are fit and well and want to have your baby—and the number of babies being delivered has diminished—it is probably financially better to be privately insured, to go and have your baby, pay for it and then get out, because you are not likely to have to access the private hospital after that. The problem, I explain to Senator Crowley, is community rating. Both parties and everybody agree that community rating should continue: that all the money goes into a bucket irrespective of age and then you take it out of the bucket. If money is not being put in the bucket by young people, of course the money in the bucket is going to run out. That is why private health insurance rates have increased: the rates had to go up because they are non-profit. In relation to the bill, the 35-day rule—and that is the only bone of contention because I know the Labor Party supports this legislation—in practical terms just does not work. What happens in real life is that when a person is over 35 days the doctor has a form shoved under his nose which says, `Can you justify this patient staying in an acute hospital?' and the doctor says yes. So it is just removing an unnecessary bureaucratic requirement for the patient to continue. It does affect a handful of people who are in private hospitals when they are really nursing home patients.We have recognised that Senator Lees—I yet again note this on the record; I have done so on previous occasions—does have a good knowledge of health care. All the time that I have been in the Senate she has taken a keen interest in it and is across the issues. I want to thank her for that. But, to answer the Australian Democrats' concerns, if people may be affected by this, and we believe only a handful would be, then we are happy to have that looked at as a disallowable instrument. The Democrats should note that the course of action the government is pursuing is supported by the Council of the Aged, the relevant consumer group, the Australian Health Insurance Association and the Australian Private Hospitals Association. We think that should satisfy the concern of the Democrats.We are not supporting Senator Forshaw's amendment because of that. As I say, it is an unnecessary bureaucratic intrusion. It did not work anyway, because ultimately the people that are in health care—the nurses and the doctors—are more concerned about the patients than they are about the bureaucrats. It was an ineffective mechanism in any case.Question resolved in the affirmative.Bill read a second time.1972The bill.10000CHAIRMANThe CHAIRMAN—I understand schedule 2 is to be opposed and that it will be put separately. The question is that the bill, with the exception of schedule 2, stand as printed.Question resolved in the affirmative.10000CHAIRMANThe CHAIRMAN—The question is that schedule 2 stand as printed.11:09:001972Forshaw, Sen MichaelSenator FORSHAW656NSWALP00—As I indicated in my speech in the second reading debate, we oppose this schedule. I do not need to add anything further to what I have already said.11:09:001972Bartlett, Sen AndrewSenator BARTLETTDT6QLDAD00—On behalf of the Democrats, I would like to reiterate what I said in the second reading debate. I acknowledge the comments made by the minister in his concluding remarks in addressing the issue, but for the reasons outlined and for the variety of concerns we have in relation to schedule 2 the Democrats will also be opposing that part of the bill. Question put: That schedule 2 stand as printed.11:13:00The committee divided. (The Chairman—Senator S. M. West)30Abetz, E. Alston, R. K. R.Boswell, R. L. D. Calvert, P. H.Chapman, H. G. P. Colston, M. A.Coonan, H. Crane, W.Eggleston, A. Ellison, C.Ferguson, A. B. Ferris, J.Heffernan, W. Herron, J.Kemp, R. Lightfoot, P. R.Macdonald, I. Macdonald, S.MacGibbon, D. J. Minchin, N. H.Newman, J. M. O'Chee, W. G. *Parer, W. R. Patterson, K. C. L.Reid, M. E. Synon, K. M.Tambling, G. E. J. Tierney, J.Vanstone, A. E. Watson, J. O. W.31Allison, L. Bartlett, A. J. J.Bolkus, N. Bourne, V.Brown, B. Campbell, G.Carr, K. Collins, J. M. A.Cook, P. F. S. Crowley, R. A.Denman, K. J. *Evans, C. V.Faulkner, J. P. Forshaw, M. G.Harradine, B. Hogg, J.Lundy, K. Mackay, S.Margetts, D. McKiernan, J. P.Murphy, S. M. Murray, A.O'Brien, K. W. K. Quirke, J. A.Ray, R. F. Reynolds, M.Schacht, C. C. Sherry, N.Stott Despoja, N. West, S. M.Woodley, J.Brownhill, D. G. C. Cooney, B.Hill, R. M. Gibbs, B.Knowles, S. C. Neal, B. J.McGauran, J. J. J. Bishop, M.Payne, M. A.Lees, M. H.Troeth, J. Conroy, S.* denotes tellerQuestion so resolved in the negative.Bill reported with amendment; report adopted.1973Bill (on motion by Senator Herron) read a third time.Bills1973r455Consideration resumed.1973The bill.10000CHAIRMANThe CHAIRMAN—The running sheets have been divided into common groupings of amendments. We are starting with running sheet No. 1, which is validation. I understand that we are to start with schedule 1, item 39.11:18:001973Bolkus, Sen NickSenator BOLKUSXE4SAALP00—In the area of validation, in the last debate the Labor Party took a particular position very strongly. It is a position that we still maintain. There are some pretty deep-seated problems in the validation process proposed by the government. We recognise that there is an issue here that needs to be resolved.There is an issue relating to the intermediate period acts, acts which may be potentially invalid or are invalid for a number of reasons. The basic reason is irresponsibility by state governments who either acted in disregard of the law—particularly after the unsuccessful High Court challenge in the case of Western Australia v. The Commonwealth—and ignored the fact that there was a responsibility on them to pursue a section 29 process or believed that native title was extinguished by historic pastoral leases. But, even for those who did take that view, that could not have been a position maintained after the Wanyi case. Some took the risk and, as a consequence, they should not be protected for that. No other individual would be.In all the circumstances, there are problems that have evolved not just for pastoralists but also for indigenous Australians. Labor took the view, which was different from that of the Greens and the Democrats on the one hand and the government on the other, that though there should be a validation regime it should be a regime that in no way goes as far as the government's. The government's regime, for us, was an excessive reaction to the Wik decision. It did not factor in in a balanced way the rights of indigenous Australians. The victims here are the native title holders. And there are also others who acted in good faith, reliant, for instance, on the state governments. They are two aspects of the problem.The government's plan was to validate all intermediate period acts—those between 1 January 1994 and 23 December 1996—which had occurred over freehold or leasehold land or on land on which a public work was constructed. We have problems with that. The definition goes well beyond any intermediate period act on pastoral land and well beyond the issues in doubt—the issue that was ultimately resolved in Wik.Secondly, the government's proposal goes to any lease other than a mining lease, not just pastoral leases. The definition of `public work', as we explained last time, is too broad and goes too far. Basically, we see the government's proposal as validating the knowingly unlawful acts of state and territory governments. That, of course, is both excessive and reprehensible.A pertinent question in this respect is: at the end of the day who pays for the government's excesses in this area? Aboriginals lose, the government goes too far, but it is the Australian taxpayer who will be paying the billions of dollars for gratuitous and excessive validation and extinguishment through that.The opposition takes the view that there needs to be certainty, but in achieving that certainty there needs to be fairness, balance, compensation and a role for indigenous Australians. Basically, the regime that we proposed was that it be limited to pastoral leases; that it not be on public work land; that the act in the intermediate period could be validated but that proper procedures would be needed; that there must be notification; that notice must have been given to the relevant representative body within four months of the commencement of the process; that the notice has to be sufficiently detailed; and, not only that, that the non-extinguishment principle has to apply. Compensation is also quite critical.One of the issues the government will have to contend with if this bill goes through unamended is the just terms provisions of the constitution. The procedural requirements thereto have not been met by the government and should stay alive as a legitimate legal issue to be pursued in the High Court by indigenous Australians. Not only was it important to have this process in the legislation but validation by agreement was also quite critical to the armoury that we put up at the time. One really only has to look at the process that has been engaged in in recent days by the Central Land Council and the Northern Land Council in respect of the Alice Springs to Darwin railway line in the Northern Territory to see that when people have to sit down and talk to other, when people do come to an issue with a bona fide objective, you can get a very successful outcome. That is what has happened in respect of that railway line through the mechanism of the agreement process.As I say, we are committed to that course but, as I said in the second reading debate, we are not going to laboriously go through every amendment we moved last time. Our second reading amendment expressed our continuing commitment to an alternative course to validation to that of the government.In respect to this re-run of the debate, we are concerned to move a number of amendments, and they go particularly to the entitlement for compensation. Our amendment to section 22D, amendment No. 13, was not accepted by the Senate in December 1997, but we raise it again today because we think, in the context of the government proposals, it is important to focus again on the necessity for the Senate to deliberate on a system of compensation, particularly a fast-track process for providing compensation for native title—a fast-track process which would work to the convenience of not just native title claimants but also other stakeholders in the process.The compensation process that we put up requires native title holders to lodge a compensation application in the Federal Court and establish a prima facie case. We allow also for the Commonwealth to be able to apply to and satisfy the court that native title did not exist at the time that the intermediate period act occurred. Essentially, it is the same amendment we put up last time, but it is one that we think is important for a number of reasons, including fairness and constitutionality.Our amendment to section 22F, the validation of state and territory acts provision by the government, in essence is a consequential amendment to our amendment 13 and requires state and territory validation regimes to incorporate similar fast-track compensation. At this stage, in respect to the government's amendments to section 232B and 232C, our advice is that they are in any event beneficial and we will be supporting those.11:27:001974Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I need some direction and I may need, by leave, to move something different from that which we are debating at the moment. I did circulate sheet No. 938 containing all of the 1997 amendments that were passed by the Senate. I want to seek leave to move to a vote on those. So we would begin where we left off on 6 December last year with all of the amendments that were moved. I would move them in a block so that we can actually begin where we ended in December last year. What I want to do, of course, is distinguish between that point and the point at which we are now.10000CHAIRMANThe CHAIRMAN—If you wish to do that Senator Woodley, you seek leave of the committee. Is leave granted for Senator Woodley to move all of the amendments on sheet No. 938 together?XE4BOLKUSSenator Bolkus—I presume the amendments Senator Woodley are moving are the ones that the Democrats and Labor moved together last time or are you moving the ones that the Greens moved last time?HX5Woodley, Sen JohnSenator WOODLEY—All the ones that were successful.11:28:001975Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I think there may in fact be a problem here in that, of the ones that were successful, amendments and subsequent amendments have developed over recent months. Although they might have been appropriate to that legislation, there has been some refinement of positions by the government and by the opposition to pick up those amendments of the government. I understand why you are doing this, and we express our in-principle support, but I think it might be a legislative nightmare if your proposal does get up.11:29:001975Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I believe it may be possible to amend any of those elements that have been refined over time if these were moved in bulk. Basically, it is to establish whether or not we are at the starting point we were at last year—not at an acceptable point but at a starting point—to see whether the legislation has improved from where we were last year. Improved from the point of view of the Greens (WA) means actually putting in some re-establishment of basic human rights for indigenous Australians.If the opposition is saying that that is a position they support, that it does not support a reduction or erosion of the position from 1997, I think it would be hardly enthusiastic about it. If there are improvements to the amendments, amendments can be made as amendments to those positions from last year. If they are in fact erosions, then obviously we would be very concerned.11:30:001975Harradine, Sen BrianSenator HARRADINE6H4TASIND00—This presents the committee with a difficulty, which was explained to some extent by Senator Bolkus. The position that we held as of December last year has been improved in certain circumstances. There are improvements contained in some amendments that I hope to move. What you are putting forward is in the nature of a second reading amendment. It should have been an amendment to the second reading. It is a question of principle, though I note that you and Senator Brown voted against the opposition's amendment which otherwise would have been carried. This is a matter which would have been best dealt with as an amendment at the second reading stage. With due respect to Senator Woodley, it is not possible to deal with it in a fashion that would give us any certainty at all as to what we are voting for or the implications for an outcome which is certain and in which people can be confident.We are being asked now to vote for what is a pig in a poke, given the changes that have occurred since December last year—changes, incidentally, which may well improve the situation as to its workability. If the mover wishes to proceed with it, I would have to say that, because I do not know what the ramifications of a successful committee stage amendment would be, I would have to vote against it.10000CHAIRMANThe CHAIRMAN—I think that there are some amendments on the running sheet that are cutting across, or will amend further, some of these amendments that were passed. If this procedure were followed, it would just about require a rewrite of the running sheets, which would take some considerable time.11:33:001975Brown, Sen BobSenator BROWNQD4TASAG00—By leave of the chamber, we could do that, but the overall process would expedite the matter. This is no pig in a poke. What Senator Woodley is putting forward is a group of amendments which were passed after due consideration by the committee of the Senate when it was dealing with the predecessor of this legislation in December. Senator Woodley is saying that we all know exactly where we ended up in December. We know which amendments were accepted by the Senate. They were, by and large, rejected by the government, but at least the Senate made some progress towards giving indigenous people a few extra entitlements—DX5MARGETTSSenator Margetts—Instead of massive losses.QD4Brown, Sen BobSenator BROWN—As against the massive losses of the legislative outcome as of 4 December. This is a clear, direct means to clear the decks. Let us start from where we ended on 4 December. Let us, from there, work forward to other amendments as the chamber may see fit. Far from being a pig in a poke, we all know where we ended up on 4 December. Far from the assurances that things have moved on in the meantime, that has all been behind closed doors. These are the negotiations going on between the government and the opposition, the government and Senator Harradine, Senator Harradine and the opposition, and goodness knows who else. Let us deal with those next, but let us test the water to see whether Senator Harradine and the opposition stand by the position that their votes led the Senate to arrive at on 4 December.The feeling I have is that that position has been considerably eroded since 4 December. I can read the newspapers as well as the next person. Senator Woodley has come forward with a good idea. Let us at the outset in this committee, which is going to run for some days, not put ourselves through the whole process of the committee which occurred last time. Let us say that the committee agrees that where we arrived at last time is a starting point for the further deliberations this time. In so doing, Senator Woodley is saying, `Let's test the opposition and Senator Harradine as to whether they stick with the position we arrived at last time, and then let's look at the improvements that Senator Harradine is talking about.' It is a good move.11:36:001976O'Chee, Sen BillSenator O'CHEEEU4QLDNP10—I think standing order 87 is apposite to this matter. The requirements of standing order 87 make it clear that Senator Woodley's proposed motion would not be helpful for the consideration of the committee. Standing order 87 says:An order, resolution, or vote of the Senate may be rescinded, but not during the same session unless 7 days' notice is given and at least one-half of the whole number of Senators vote in favour of its rescission, except that to correct irregularities or mistakes one day's notice shall be sufficient.If we were to adopt Senator Woodley's proposed motion, I understand that there are certain things that were dealt with by amendment in the Senate which have now been superseded because there are better amendments which are more likely to get cross-chamber support. If the amendments that Senator Woodley would put en bloc are passed, they cannot be superseded for another seven days. That does not help in the resolution of the matter, and I urge Senator Woodley to reconsider his tactic. I know it is well meaning, but I do not think it expedites consideration of the matter.10000CHAIRMANThe CHAIRMAN—I remind senators that I have not yet put to the chamber the question that Senator Woodley has requested that this be given leave, so we might be having a discussion that we do not need to have.11:37:001976Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Madam Chair, I think it is quite important that we put these issues on the table before you put the question. I have looked up page 54 of the standing orders under `Rescission of order'. But, as honourable senators will know, you can amend decisions, you can amend amendments and you can amend amendments after they have been moved and after they have been passed, and you can, by leave of the Senate, revisit votes that have taken place within the debate. I need some guidance on that: perhaps the Chair might be able to assist. But I do not necessarily think that standing order 87 applies. I know it would be difficult—10000CHAIRMANThe CHAIRMAN—Would it help, Senator Margetts, if I said that rescission is not relevant to this particular matter?DX5Margetts, Sen DeeSenator MARGETTS—It would be very helpful.10000CHAIRMANThe CHAIRMAN—It is not relevant to this matter.DX5Margetts, Sen DeeSenator MARGETTS—Thank you very much. Therefore, we do not seem to have any legal challenge to the method of doing this. It would be difficult; we know this. But, considering the statements that have been made by many people, it is a defining moment within this debate. It is defining because it is quite clear that many of the changes that Senator Harradine mentioned are not really available to the rest of us to look at to judge whether they are better or worse. But the changes can be made and they can be made during this debate. They can be made to the decisions that will be made if Senator Woodley's motion is successful.It may well be that we are looking defeat in the face because, quite clearly, the Labor Party has a different agenda. Quite clearly, the government does not wish to put the position from last year on the table, and it is quite probable that they may pick up their books, move out and never visit this again if the Senate takes this stand as a starting point. So, quite frankly, I think the vote will be very important.We would appreciate the chance to vote, but I do not like the chances, looking at the kind of response that we are getting in the chamber. We would like the chance to see whether in fact the starting point is the way the Senate responded last year—which, of course, the Greens thought was woefully inadequate—in order to try and improve from there.If in fact we are trying to improve that position, well and good; that will come out during the debate. If we are starting from a worse position, from a woefully inadequate position, this vote and this response will show it.11:40:001977Bolkus, Sen NickSenator BOLKUSXE4SAALP00—Senator Harradine, I think the language you used—asking us to buy a pig in a poke—is appropriate. Senator Woodley, you can get up and formally move all the amendments moved by the opposition parties that you say were carried last time. You have not yet explained them. I could very easily say to you, `Can you explain amendment after amendment?' It may be necessary to do that, because the record that I have from last time in respect to the validation regime is that the only successful amendment was one Democrat-Green amendment which expressed the view that the non-extinguishment principle applied to the acts referred to in subsection (9). That is a commitment which we still have. And it was an amendment which was also moved by Senator Harradine at the time.Apart from government amendments that got up last time, the other successful amendments that I have a record of in respect to the validation regime were Harradine amendments (2), (3) and (4), which go to confirmation of suspension of native title, as opposed to partial or extinguishment.I think it needs to be clarified whether we are to pursue all the amendments that were moved last time as opposed to those that were carried last time. We were told that was not going to happen. We were told you were to move the amendments that were successful last time. I might have it wrong, but I think it important at this particular stage to identify, because we have not had an explanation of the amendments, that there is a bit of confusion. As I said, the record shows something different to what you are proposing to move now. The record shows that, despite all the argument and debate and powers of persuasion we had last time, we were not successful in all that many areas in respect of validation.Senator Margetts and Senator Brown, if you want to sit there and sledge the opposition for the next three or four days, it will make you feel good, but the record will show that your attacks will only have sustenance if you actually get up and tell us what you are concerned about in respect, for instance, to these amendments. Senator Brown, it is very easy to get up here, as you have done for the last few minutes, and attack the Labor Party for doing this, that and the other, knowing full well that we have been in an intensive consultation process with stakeholders, especially those who missed out on meaningful consultation with the government. We have laboriously gone through word after word after word, which is something I must say to you, Senator Brown, that you have not done.We are in the business of protecting the rights that were obtained in the last debate; we are also in the business of trying to build on those rights. The amount of work that people have put into finding ways through, into finding ways of tightening up, into finding ways of improvement and into persuading the government that there are measures that they could pick up has just been enormous. People have been working until two, three and four o'clock this morning trying to get the words right. I think your dismissal of that sort of effort as a sell-out is something which really does you no benefit at all.Let us get to the debate. If you are going to move amendments, explain them properly. I think Senator Woodley has kicked off with one area where there are a few problems in terms of revisiting all the amendments but, if we are going to revisit amendments—as you say you are doing—that got up last time, let us do that so we can get through it. I am still keen to ensure that the amendment that provided for the non-extinguishment principle to apply will again get up. I am still committed to ensuring that the other amendments in respect of validation which were moved by Senator Harradine that got up will again get up. I am also committed to ensuring that a fast-track compensation regime gets up as well. So we are not selling out, Senator Brown; we are actually working hard at it.11:44:001978Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—If I could make a clarification for Senator Bolkus, as I understand it, amendment sheet 938, which I have had distributed, has all the amendments which were accepted by the Senate—the government-Green amendments, the Green-Democrat amendments, the ALP and Harradine amendments, and those not already included by the House of Representatives.11:45:001978Brown, Sen BobSenator BROWNQD4TASAG00—Senator O'Chee trawled the standing orders and came up with a boot. Obviously, this is a perfectly valid and helpful move for the committee to be taking. Notwithstanding the brittleness of Senator Bolkus, what he did say was that we want to build on what we had last time. Senator Woodley came in and said, `Well, okay, let's bring us up to where we ended last time so that we can build upon that.' It seems that the Labor Party does not like the idea.There is a pretty simple mechanism here, and it is very clear to all what we are doing. We are saying, `Let's bring us up to 4 December and work from there.' By the way, Madam Chair, the government has already included 110 of the 237 successful amendments from last time, so all Senator Woodley is doing is saying, `Let's have the other 127, not just allow the government to pick some, which it does not find too difficult to do because they are not going to help indigenous people too much. Let us move all 237 and start from there.' The government can go halfway; let the committee go the full way and, from that point, we will be able to make further amendments, which Senator Harradine and the opposition assure us are going to improve the legislation—I expect that that is meant to mean improve it for indigenous people. This is a wise mechanism. It gives us a clear starting point for the beginning of what is going to be a long committee stage. I thank Senator Woodley for bringing it forward. It is a good one. I would expect that leave will at least be granted for the motion to be put to the committee.11:47:001978Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I think it is necessary for me to make a comment on the questions that were asked of me as to why the Greens did not support the opposition's second reading amendment. That is quite clear. It was a conscious decision. My making a point of letting the chamber know that the Greens (WA) were not supporting that was part of that clear choice. It is not the same as what we are asking now.What was done in relation to the second reading amendment was perhaps a nice comfortable way for the Labor Party to say, `What was acceptable to us the last time was something that we can state in a second reading amendment and then we can, as a symbolic gesture, look as if we have done something, and at the same time we can be moving in the other direction towards the compromises that the government is looking for.' I do not think that is acceptable and that is why I was not prepared to put the Greens' name to that second reading amendment.I am not here to make the Labor Party feel comfortable with the decision it took last year not to support the bill. That is not my role in the Senate. My role here is to try to work for rights and for justice for Aboriginal people and for the people of Australia. I do not believe that taking that position in supporting the bill in 1997 was a right or just role. I do not think second reading amendments are supportable which state, `We tried. Look, we made an effort, and wasn't that good enough?'If we are talking about real gestures, this is the gesture that it is necessary to make. These are not nearly good enough as far as I am concerned. The amendments that we are putting are not even close; however, if anybody suggests that people are holding the line, these amendments are the starting point from which we should be attempting to improve the basic human rights that we are dealing with here. The further diminishment, the reduction, of the loss is necessary. We are not talking about gains; we are talking about desperately trying to reduce the loss that exists and is exemplified by even that series of amendments, because we know that most of the reasonable amendments that the Senate put to the government at the end of last year were rejected. Therefore, this is necessary. It is more than a symbolic gesture. It is necessary to put the cards on the table to show where people are standing at this point and where we are going from here.11:49:001979Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—The only way to structure this debate is to take the bill as presented, to work through each of these blocks, to look at the amendments proposed, and to deal with them. I think the proposition from Senator Woodley will add considerably to the potential confusion of what could be a confusing debate—and it certainly became so last time. We have no objection to leave being granted on the basis that we then vote on the motion.11:49:001979Harradine, Sen BrianSenator HARRADINE6H4TASIND00—Briefly, could I just say, Madam Chair, that people have spent endless hours—late into the night, early in the morning, for days and weeks on end—looking at this. I certainly have been looking at and seeking advice on all the amendments that we adopted last December. There have been questions raised as to their practicability. This wad of papers is the sort of advice that I have been working through. As to whether the motion that Senator Woodley's wishes to move is going to lead to a situation where some of the amendments that were accepted by us last time were actually unworkable, I can give you a number of examples.One that I can see here is in regard to my Harradine amendment No. 56, on page 11 of my last amendment sheet. It was pointed out that there is some concern that, because of the definition of `equivalent body' in that particular amendment, the amendment may inadvertently affect administrative officers such as the registrar. That was not my intention. My intention was to ensure uniformity across Australia by requiring a member of the National Native Title Tribunal to be a member of the state body which was hearing and determining a matter.I can see the point that is being made by those who have advised me on this. If I were to vote, with due respect, for the motion, I would be voting, frankly, for a nonsense after having laboriously gone into all these issues. I regret to say—and I understand that it should have been done at the second reading stage but it was not—that it is an absolute nonsense to expect the committee to adopt this approach. I do not suppose that it is asking me to buy a pig in a poke, because I have gone through it all, but it is asking some others around the place—perhaps yourselves included—to buy a pig in a poke.11:52:001979Bolkus, Sen NickSenator BOLKUSXE4SAALP00—If I can help the debate, the only amendments that got up last time from the non-government side were the ones that expressly provided that there would not be extinguishment but there would be suspension. Looking at Senator Harradine's list of amendments (2), (3) and (4) today under `Confirmation', those amendments do exactly the same thing as what we managed to achieve last time. They are a bit different possibly because of different wording that we are amending.But if we are concerned about maintaining the position that was achieved, the gains that were made by the non-government side last time, then Senator Harradine must move those amendments today. So, essentially, you can say we are arguing over one word, one principle, but it has been accommodated for in Senator Harradine's amendments that we will be supporting this morning or this afternoon.In respect of the other amendments that got up, they were government amendments and the government is moving substantially those amendments again this time. The effect of what it is moving is the same as what it moved last time.11:53:001980Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—We debated this in November and December of last year. I suggest to Senator Harradine that the Greens and the Democrats were not taken into anybody's confidence in talking through the intricacies of the argument. I expect the government had many robust arguments as to why the world was going to fall apart if any of these amendments stood. I expect that they believe the whole thing is unworkable even though there is clear evidence in states like Western Australia that the state government and friends and family of the state government are assisting to try to make native title as unworkable as possible. I have mentioned some of that in my speech during the second reading debate.The reality is that unworkability is an issue in many parts of law. We have had several debates in recent days about laws that have been held up in the courts for long periods of time for various reasons. We do not immediately move in this Senate to abolish, for instance, the rights of retailers, the rights of land owners and the rights of others where there are long legal battles. It happens in every element of public life and in every element of commercial life. The only area where we are being called to extinguish the rights of one group of people is in this one—because the law is difficult.Why should we as a Senate be asked to extinguish the rights of people who have very little rights to start with as a result of the unworkability of a particular legal issue? Surely, we should be looking to see how those rights can be maintained to make things better for all people, not just one or two groups of people in our society.When we are talking here about whether or not somebody is being asked to accept a pig in a poke, I would have to say it is the Greens, the Democrats and the concerned people in the community who are being asked to take the word of the government that the concerns that have been passed to you in long hours overnight—that none of us have been involved with—are legitimate concerns. We are coming here to a done deal. We are coming into this chamber to what, in fact, is a done deal where the arguments have been placed over months and months and where the community and those most interested in the issue have been locked out.The government said, `We are going to have a tantrum unless indigenous people are prepared to give up even more than they gave up in 1993 and even more than was taken away from them at the end of last year. We are not going to talk to them.' How legitimate is that process when this government quite clearly under international law does not have the sovereignty to do such things? How legitimate is that process that this government could potentially go to the international community and say, `We did a good thing. We didn't include Aboriginal people. We told them that they were not to come to us unless they were prepared to give up more, but we worked things out and we explained it all behind closed doors. We are going to try to sell it in the Senate process, but this is reasonable. We are not going to go back to where we were last year. We are not even going to accept the far from adequate position that was reached at the end of last year.'If we are talking about being sold a pig in a poke, how about the people out there who are most affected? How have they been involved in this process? How do they think their issues have been dealt with when they have been dealt out of the process because the government kicked up a tantrum and said, `No, we will talk to you only if you are going to give up more things than we have even asked you to give up so far'?11:57:001981Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I do have to intervene very briefly. There was a misunderstanding by Senator Margetts. If she considers that all of these hours of discussions and considerations of what took place in December last year were simply with the government, she is absolutely mistaken. Of course the government has been discussing matters with us, but all of the other stakeholders have as well—the indigenous people, the pastoralists, the miners, various communities, local government, some state governments and so on. All I am saying to you is that we have gone through thoroughly those matters against the principles on which—DX5MARGETTSSenator Margetts—Who is `we', Brian? Where were the Aboriginals?6H4Harradine, Sen BrianSenator HARRADINE—I am using the royal `we'. I have been going through—DX5MARGETTSSenator Margetts—Yes, exactly.6H4Harradine, Sen BrianSenator HARRADINE—Look, please. I have had discussions, along with other people, including my legal advisers and others, with the indigenous working group, various other indigenous persons whom I know and the other stakeholders. It is not just as you paint it that these things have been going on behind closed doors with the government and that there is some sort of deal coming from it. My comment to Senator Minchin was that I bet he wished that that were so.But the difficulty is that, if we vote for this, we are in a real pickle because we will have to really rewrite the legislation and then go to the various clauses and we will get nowhere. I suggest that we now proceed with the committee stage and look at the legislation and the amendments before us. Things have been pretty busy, but I think honourable senators know that I am happy to discuss any matters with them when time permits.12:00:001981Brown, Sen BobSenator BROWNQD4TASAG00—The matter is very clear. The government has seen fit to put 110 of last year's amendments into the legislation. Sena tor Harradine and the opposition say that that is okay. The Democrats and Greens want the 127 amendments put in as a starting point too, and Senator Harradine, the opposition and the government apparently do not want that. I will tell you why they do not want that. They do not want that because those 127 other amendments are the ones which have some advantage to the indigenous people and which make the majority of senators participating in the committee stage feel a darned sight more uncomfortable.The procedure is a good one. It says, let us start from 4 December last year with, not the half the government wants, but the whole lot as voted for by the majority of the Senate. What could be simpler than that? This is not a pig in a poke as Senator Harradine said; it is a poke at the pig. It is a poke at the swine that this legislation is, not only as far as the indigenous people of this country are concerned, but also as far as the future of this country is concerned if it wants to be one country and not a divided country because its indigenous people have been sold out.I hope leave will be given. I hope there will be support to be even-handed, at the outset, so that not just the government gets its way, but the committee stands behind the votes it took in December last year and makes amendments from there on. Senator Harradine has the wit and wisdom to be able to do that with great ease, as have the rest of us. It is not beyond the committee to do that. It will not be difficult. It will expedite, it will shorten, the deliberations of this committee if we do not have to go through all those amendments seriatim again.Senator Bolkus said that Senator Harradine has three amendments coming up which cover part of this. We will not have to deal with them. They will have been dealt with. It is only where the committee wants to depart from 4 December last year that we will have to debate the matter in committee. It is a good move, Senator Woodley. I hope we get leave and I hope we succeed.12:02:001981Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I have a couple of points in response. Senator Brown, if you are worried about the number of amendments, and concerned that there is a sell-out because there are not as many amendments this time as there were carried last time—QD4BROWNSenator Brown—That doesn't worry me.XE4Bolkus, Sen NickSenator BOLKUS—That is the point you just made. Can I invite you to add up the amendments circulated by me and Senator Harradine and you will find that there are an extra 131. That is a few more than were carried last time. I am sure Senator Minchin wishes that there were a few less.I suggest to you that you take out the documents and have a look and see what is actually before the Senate, and then start making those assertions if you think they are valid. The point is that they are not. You are claiming that there are deals. There are no deals, Senator Brown. You will still find that as we embark upon the debate there are many issues that are outstanding and that need to be resolved. The way things are happening they will not be resolved. In three days time I am sure you will be coming to me saying, `We tried hard, but we could not get up everything we wanted.' That will be the case.12:04:001982Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I just want to make a couple points clear. It is actually the government that created this problem by not following the proper procedure of the Senate when this legislation went to the House of Representatives. If they had followed the usual procedure and sent back the bill disagreeing with the amendments we then could have had a vote on that and we would have known the mind of the Senate. The government played games with the whole process, which has been the point I have been making for quite a long time.What we are asking for is a simple starting point—that is, the legislation as we had it before the Senate in December last year that then went to House of Representatives. We have not had a message from the House of Representatives which says that the House of Representatives disagrees with our amendments. What we are really doing is trying to reconstitute the normal process that should have been followed. Whether or not you give leave will be an indication to us whether you feel you want to start where we got to last December. I am happy for us to proceed and we will simply determine that.12:05:001982Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I do need to point out the obvious to Senator Bolkus, that the number of amendments is irrelevant.XE4BOLKUSSenator Bolkus—Tell Senator Brown that.DX5Margetts, Sen DeeSenator MARGETTS—If I could finish my point—XE4BOLKUSSenator Bolkus—Talk to your colleague.DX5Margetts, Sen DeeSenator MARGETTS—Senator Bolkus is getting very tetchy at the moment. What I am suggesting is that no matter how many amendments the government, Senator Bolkus or Senator Harradine will be moving, it may not be an improvement to the bill. We still have to find out what is in those amendments and in what direction they are taking us. Quite frankly, I think that if they have been accepted by the government they are unlikely to take us closer than we were last year to the position of justice for Aboriginal people. That is the reality.Remember that last year the government said, `No way is this acceptable—not in a million years.' Guess what? If you have so many amendments from the parties here I get the feeling that what we will be doing is not moving closer to justice for Aboriginal people. I cannot imagine you would have that many amendments that are going to move us a step forward from the 1997 position. I cannot imagine that the outcome after hours and days of discussions with the government, the opposition and lawyers behind closed doors will be 100 amendments which will move us closer to justice for Aboriginal people. I cannot see it myself.10000CHAIRMANThe CHAIRMAN—Is leave granted to Senator Woodley to move the amendments on sheet 938 as a group? There being no objection, leave is granted.Amendments (by Senator Woodley) proposed:Indigenous land use agreementsOpp (48A)Schedule 1, item 9, page 23 (line 2), at the end of paragraph (f), add ", including past and intermediate period acts". Opp (48B)Schedule 1, item 9, page 26 (line 18), at the end of paragraph (f), add ", including past and intermediate period acts".Opp (48C)Schedule 1, item 9, page 35 (line 25), at the end of paragraph (f), add ", including past and intermediate period acts".Claims process and sunset clauseOpp (223)/Dems-GWA (190)/Harradine (1)Schedule 2, item 3, page 147 (lines 11 to 15), omit the item.Opp (242)Schedule 2, item 19, page 162, (line 27), after "84(5)", insert "or (5B)".Opp (247)Schedule 2, item 20, page 172 (line 10), omit "paragraph 66(3)(a)", substitute "subparagraph 66(3)(a)(i), (ii), (iii), (iv), (v) or (vi)".Opp (248)Schedule 2, item 20, page 172 (lines 13 and 14), omit subparagraph (iii).Opp (249)Schedule 2, item 20, page 172 (lines 25 to 27), omit subsection (5), substitute: (5) Another person is a party to the proceedings if the person satisfies the Federal Court that he or she has an interest (see section 253) in relation to the land or waters concerned or a part of them. (5A) If the relevant Minister is a party, a person is not entitled to be a party to the proceedings only because he or she exercises or enjoys a public right of access to, or use of, the land or waters concerned. (5B) If, in the absence of a relevant Minister, there are persons seeking to be joined to represent those enjoying public interests, the Federal Court may give directions to ensure that their interests are properly represented, but need not join more than one person to represent a particular interest.Harradine (1)Schedule 2, item 20, page 170 (line 22), omit "may", substitute "must".Registration testOpp (265)Schedule 2, item 63, page 205 (line 21), at the end of subsection (4), add ", even though the rights and interests are not described in terms appropriate to any analogous common law interests".Opp (267)Schedule 2, item 63, page 205 (line 27) to page 206 (line 24), omit subsections (6), (7), (8) and (9), substitute: (6) The factual basis upon which the continued existence of native title rights and interests is claimed must include an assertion that: (a) at least one member of the native title claim group: (i) currently has or previously had a traditional physical connection with the land or waters covered by the application, or with areas or sites of particular significance within the area covered; or (ii) would reasonably have expected to maintain such a traditional physical connection but for the actions (other than actions consisting of the valid grant of an interest in land) of the Crown, a statutory authority or another person preventing the maintenance of the physical connection; or (b) the native title claim group has continued to acknowledge traditional laws and (so far as practicable) to observe traditional customs so that the traditional connection with the land has been substantially maintained. (7) The Registrar must consider that, prima facie, the assertion referred to in subsection (6) can be made out. (8) If the Registrar is considering placing reliance on material which is adverse to the interests of the claimant, or inconsistent with material supplied by the claimant, the claimant must be shown the material and given a reasonable opportunity to respond or supply further material. (9) If, after receiving a response or other material from the claimant, the Registrar is satisfied that there is a genuine factual dispute with respect to the adverse or inconsistent material or a genuine legal dispute as to its effect, the Registrar must not consider the adverse or inconsistent material further.Representative bodiesOpp (312)Schedule 3, item 11, page 238 (line 26), at the end of subsection (3), add: However, the body must not allow access to or transfer documents or records that are the subject of legal professional privilege or copyright, or of knowledge owned, according to traditional law and custom, by a third person, without: (a) for privilege, copyright or knowledge of a third person—the consent of the third person; or (b) for privilege or copyright of the body—the consent of the body.Opp (332)Schedule 3, item 30, page 259 (after line 18), at the end of section 203BG, add: (2) In considering what is reasonably practicable for the purposes of subsection (1), the resources available to the representative body may be taken into account. (3) The notification functions of a representative body are not intended to derogate from, diminish or impair in any way the obligations imposed under this Act on a government, Minister or other person to give notices.Facilities for services to the publicOpp (100)Schedule 1, item 9, page 67 (lines 2 to 12), omit subsection (7), substitute: (7) The native title holders have the same procedural rights as they would have in relation to the act on the assumption that they instead held ordinary title covering any land concerned or covering the land adjoining, or surrounding, any waters concerned.MiscellaneousHarradine (56)Schedule 2, item 71, page 212 (lines 3 to 14), omit paragraph (f), substitute: (f) the law of the State or Territory requires a member of the NNTT to be a member of the equivalent body; andGWA (1)Schedule 2, item 71, page 211 (after line 22), after paragraph (b), insert: (ba) the law of the State or Territory will provide for judicial review of decisions of the one or more equivalent bodies (including the provision of a statement of reasons for the decision and procedures for, and grounds of, review) equivalent to those available under the Administrative Decisions (Judicial Review) Act 1977 ; and GWA (2)Schedule 2, item 71, page 212 (after line 12), after paragraph (f), insert: (fa) members of the equivalent bodies will only be appointed by the Governor or Administrator, as the case may be, and will enjoy no less security of tenure and independence from government than are provided to members of the NNTT under this Act; andCompensationOpp (184)Schedule 1, item 9, page 122 (after line 3), after paragraph (b), insert: and (ba) the activity is validly undertaken: (i) in accordance with the terms of the lease, licence, permit or authority; and (ii) in accordance with any conditions applicable at the time the activity was undertaken; and (iii) in accordance with any requirements or conditions applicable under this Act, any other Act and any law of the State or Territory concerned;Opp (188)Schedule 1, page 126 (after line 2), after item 13, insert:13A Subsection 50(1)Omit "section", substitute "Division".13B Subsection 51(1)Omit "Subject to subsection (3), the", substitute "The".13C After subsection 51(1)Insert: (1A) To avoid doubt, the entitlement to compensation referred to in subsection (1) arises whether the loss, diminution, impairment or other effect of the act on native title rights and interests occurs as a result of a valid act or an invalid act.Opp (192)Schedule 1, page 128 (after line 13), after item 26B, insert:26C After section 53Insert:53A Small compensation claims (1) If a claimant lodges a claim for compensation in respect of an act in the Federal Court, the claimant may: (a) place before the Court such material as he or she thinks fit for the purpose of establishing to the requisite degree of satisfaction that, unless alternative procedures are directed, it would not be reasonable for the claimant to pursue the claim, given the likely amount of compensation available; and (b) seek from the Court an order that the matter be referred to the Tribunal for determination in accordance with such directions as the Court may think appropriate, and (c) seek such directions as the claimant considers appropriate. (2) The Court must make the order sought if it is satisfied that: (a) there is available to the applicant prima facie evidence of the existence of the native title rights and interests in relation to which compensation is sought; and (b) there is prima facie evidence that the applicant or at least some of the native title group have a connection by their traditional laws and customs with the land or waters in question, and (c) there is not unequivocal evidence that all of those native title rights and interests have been extinguished, and(d) either: (i) the likely amount of the compensation is not expected to exceed the likely cost of maintaining and prosecuting the claim in the Court by more than 50%, or (ii) the likely amount of that compensation available to the native title group is unlikely to exceed $50,000 (or a greater prescribed amount); and (e) the claim can be dealt with more efficiently, cost effectively and expeditiously by the Tribunal than by the Court. (3) If the Court directs that the claim be referred to the Tribunal, the Tribunal may: (a) make a finding that native title rights and interests exist or existed for the purposes of determining compensation where the Tribunal is so satisfied, on a prima facie basis; and (b) adopt such procedures as it wishes in relation to the determination of value of compensation payable, including obtaining evidence at its own expense and limiting the extent to which expert evidence may be tendered and may be the subject of challenge by parties other than the claimants; and (c) determine the compensation payable. (4) The Tribunal must not make a determination of the kind mentioned in paragraph (3)(c) if the party that would be responsible for paying the compensation proves that the native title rights and interests did not exist. (5) If a claim is referred to the Tribunal by the Court in accordance with this section, the Tribunal: (a) is not bound by technicalities, legal forms or rules of evidence; and (b) must formulate its own procedures so as to minimise any legal expenses involved for the parties; and (c) may direct the Government party to meet any reasonable costs of the claimants as seem appropriate, including the costs of obtaining expert evidence as to value; and (d) must take account of the cultural and customary concerns of Aboriginal people and Torres Strait Islanders, and (e) may include in the compensation payable any reasonable costs incurred by the claimants.Renewals and extensionsHarradine (14)Schedule 1, item 9, page 60 (lines 14 to 17), omit paragraphs (4)(b) and (c).Right to negotiateOpp (113)Schedule 1, item 9, page 78 (lines 8 to 15), omit subparagraph (iii), substitute: (iii) the compulsory acquisition of native title rights and interests, if a purpose of the acquisition is to confer rights or interests in relation to the land or waters concerned on persons other than the Government party; orOpp (R114)Schedule 1, item 9, page 78 (after line 21), after subsection (1), insert: (1A) A compulsory acquisition will be deemed to be an acquisition involving a conferral of interests on persons other than the Government party, unless it is stated in writing to be for a Government purpose. Opp (R115)Schedule 1, item 9, page 78 (lines 27 and 28), omit paragraph (b).Opp (118)Schedule 1, item 9, page 79 (line 3), omit "sections 43 and 43A", substitute "section 43".Opp (120)/Dems-GWA (110)Schedule 1, item 9, page 79 (line 12) to page 82 (line 2), omit section 26A.Opp (124)Schedule 1, item 9, page 87 (line 24) to page 88 (line 5), omit subsection (1).Opp (124A)Schedule 1, item 9, page 59 (after line 26), after subsection (1), insert: (1A) This section does not apply where the original lease etc. is the creation of a right to mine, whether by the grant of a mining lease or otherwise.Opp (125)Schedule 1, item 9, page 88 (line 13), omit ", (g) or (h)".Opp (126)Schedule 1, item 9, page 88 (lines 15 to 19), omit paragraph (c), substitute: (c) the agreement mentioned in paragraph 28(1)(f) provided: (i) an express understanding that there would be no further negotiation before the later act took place; and (ii) that, if the later act were done, certain conditions would be complied with by parties other than native title parties (whether before or after the act was done); andOpp (127)Schedule 1, item 9, page 88 (after line 22), at the end of section 26D, add:Exception (3) However, the exclusion provided by this section does not apply if the agreement with respect to the earlier act provides for or permits the application of this Subdivision to the later act.Opp (129)Schedule 1, item 9, page 90 (line 25), omit "34A,".Opp (130)Schedule 1, item 9, page 91 (after line 7), at the end of section 28, add: (3) A person wishing to lodge a native title determination application under section 61 may apply to the Federal Court for an order prohibiting the doing or continuation of any act to which this Subdivision applies on the basis that section 29 has not been complied with.Opp (131)Schedule 1, item 9, page 93 (line 3), after "notice", insert ", but only if all of the acts are in relation to land or waters in which each of the parties referred to in paragraphs (2)(a) and (b) has an interest".Opp (134)Schedule 1, item 9, page 97 (after line 14), at the end of section 33, add: (3) If the negotiations are with respect to a right the creation of which may constitute an earlier act for the purposes of section 26D, the negotiations may include the possibility that: (a) any agreement which results will provide for further negotiations in respect of an act that constitutes a later act for the purposes of that section; or (b) this Subdivision will apply to the later act. (4) Proceedings may be taken in the Federal Court in relation to an agreement reached under section 31 pursuant to negotiations about matters referred to in subsection (3): (a) for specific performance of the agreement; or (b) for a declaration that the conditions of the agreement agreed to by non-native title parties have not been complied with; or (c) for an injunction or prohibition restraining those parties from continuing to do things under the act or the later act; or (d) for damages for the doing of the things or for a failure to comply with the conditions, or both.Opp (135)Schedule 1, item 9, page 97 (line 18), omit "34A,".Opp (139)Schedule 1, item 9, page 99 (lines 18 and 19), omit paragraph (c).Opp (140)Schedule 1, item 9, page 99 (line 22), omit "34A,". Opp (141)Schedule 1, item 9, page 99 (after line 23), at the end of section 35, add: (3) An application to the arbitral body does not preclude further negotiations referred to in paragraph 31(1)(b) and, if the arbitral body is given a copy of an agreement resulting from the negotiations (see section 41A) before it makes a determination, the application is taken to have been withdrawn unless the negotiation parties advise the arbitral body that a determination may still be made.Opp (143)Schedule 1, item 9, page 100 (line 23), omit "Relevant ", substitute "Commonwealth ".Opp (144)Schedule 1, item 9, page 100 (lines 30 and 31), omit paragraph (c).Opp (145)Schedule 1, item 9, page 101 (line 1), omit "relevant", substitute "Commonwealth".Opp (146)Schedule 1, item 9, page 101 (line 4), omit "relevant", substitute "Commonwealth".Opp (147)Schedule 1, item 9, page 101 (line 5), omit "relevant", substitute "Commonwealth".Opp (148)Schedule 1, item 9, page 101 (lines 9 to 21), omit paragraphs (2)(b) and (c) and subsection (3), substitute: (b) it is in the national interest to make the determination at that time.Opp (149)Schedule 1, item 9, page 101 (line 22), omit "34A or ".Opp (150)Schedule 1, item 9, page 101 (line 23), omit "34A or".Opp (151)Schedule 1, item 9, page 101 (line 24), omit "relevant", substitute "Commonwealth".Opp (152)Schedule 1, item 9, page 101 (lines 28 to 30), omit paragraph (2)(a).Opp (153)Schedule 1, item 9, page 102 (line 1), omit "relevant", substitute "Commonwealth".Opp (154)Schedule 1, item 9, page 102 (line 8), omit "relevant", substitute "Commonwealth". Opp (155)Schedule 1, item 9, page 102 (line 28), omit "relevant", substitute "Commonwealth".Opp (156)Schedule 1, item 9, page 103 (line 2), omit "relevant", substitute "Commonwealth".Opp (157)Schedule 1, item 9, page 103 (line 4), omit "relevant", substitute "Commonwealth".Opp (158)Schedule 1, item 9, page 103 (line 6), omit "relevant", substitute "Commonwealth".Opp (159)Schedule 1, item 9, page 103 (line 20), omit "34A and ".Opp (160)Schedule 1, item 9, page 103 (line 24), omit "34A or".Opp (161)Schedule 1, item 9, page 103 (line 28), omit "relevant", substitute "Commonwealth".Opp (162)Schedule 1, item 9, page 104 (line 7), omit "relevant", substitute "Commonwealth".Opp (163)Schedule 1, item 9, page 104 (line 9), omit "relevant", substitute "Commonwealth".Opp (164)Schedule 1, item 9, page 104 (line 27), omit "relevant", substitute "Commonwealth".Opp (165)Schedule 1, item 9, page 105 (lines 4 to 14), omit subsection (7), substitute: (7) The Commonwealth Minister must, as soon as practicable after making a determination, and in any case within 15 sitting days, cause a copy of the determination, together with reasons for the determination, to be laid before each House of the Parliament.Opp (166)Schedule 1, item 9, page 105 (line 20), omit "34A or".Opp (167)Schedule 1, item 9, page 105 (after line 27), after subsection (1), insert: (1A) A determination may, with the agreement of the parties, provide that particular matters that: (a) are not reasonably capable of being determined at the time the determination is made; and (b) are not directly relevant to the doing of the act; are to be the subject of further negotiations or determined in a specified manner. (1B) If the matter is to be determined by arbitration otherwise than by the arbitral body, the parties must agree to the manner of determination or, in the absence of agreement, the matter must be determined by the arbitral body at an appropriate time. Example 1: A mining lease may be granted subject to quantification of compensation etc. at a later time by an independent arbitrator. Example 2: A mining lease may be granted subject to site clearance procedures to be determined by a third person.Opp (170)Schedule 1, item 9, page 106 (after line 5), at the end of section 38, add: (3) If the act is with respect to a right the creation of which may constitute an earlier act for the purposes of section 26D, the determination may include a condition that: (a) will provide for further negotiations in respect of an act that constitutes a later act for the purposes of that section; or (b) will provide that this Subdivision will apply to the later act. (4) Proceedings may be taken in a Court of a State or Territory in relation to a determination under this section: (a) for specific performance of a condition of the determination; or (b) for a declaration that the conditions of the determination have not been complied with by non-native title parties; or (c) for an injunction or prohibition restraining those parties from continuing to do things under the act or the later act; or (d) for damages for the doing of the things or for a failure to comply with the conditions, or both.Opp (172)Schedule 1, item 9, page 106 (lines 32 and 33), omit paragraph (d). Opp (173)Schedule 1, item 9, page 108 (after line 4), at the end of section 40, add: (2) Subsection (1) does not apply to an indigenous land use agreement, or an agreement in writing referred to in paragraph 31(1)(b), that identifies the agreement or determination affected.Opp (174)Schedule 1, item 9, page 109 (line 10), omit "34A or".Opp (176)Schedule 1, item 9, page 112 (lines 35 and 36), omit "34A or 36A, or both,", substitute "36A".Opp (177)Schedule 1, item 9, page 113 (lines 7 and 8), omit ", or such longer period as the Commonwealth Minister allows,".Opp (R197)Schedule 1, item 34, page 133 (line 9), omit "26A(1),".Opp (198)Schedule 1, item 34, page 133 (line 10), omit "or 43A(1)(b)".Opp (201)Schedule 1, item 34, page 133 (lines 11 and 12), omit "or paragraph (i) of the definition of infrastructure facility in section 253".Opp (R202)Schedule 1, item 34, page 133 (line 15), "omit 26A(8),".Opp (203)Schedule 1, item 34, page 133 (line 16), omit ", 43(3) or 43A(6)", substitute "or 43(3".Opp (R209)Schedule 1, item 42, page 138 (lines 16 to 18), omit the item, substitute:42 Paragraph 237(a)Omit "does not directly interfere with the community life", substitute "does not interfere directly with the actual functioning of the way of life of the community".Opp (210)Schedule 1, items 43 and 44, page 138 (lines 19 to 22), omit the items, substitute:43 At the end of section 237Add: (2) If the act creates rights in persons other than those who are or may be native title holders in relation to the land or waters concerned, the following must be taken into account: (a) the terms and conditions contained in any relevant grant, licence, permission or authority; (b) the legislation governing their creation; (c) the possible activities that would be authorised by their creation. (3) In deciding whether an act involves a major disturbance as mentioned in paragraph (1)(c), the beliefs and concerns of the native title claim group must be considered.Opp (221)/Dems-GWA (188)Schedule 1, item 57, page 145 (lines 13 to 32), omit the item.Opp (287)Schedule 2, item 78, page 216 (table), omit the item relating to infrastructure facility.Opp (354)Schedule 5, item 11, page 351 (line 32), omit "34A,".Opp (355)Schedule 5, item 11, page 352 (lines 7 and 8), omit "or 43A(8)".Dems-GWA (106)Schedule 1, item 9, page 78 (lines 33 and 34), omit "renewals of valid mining leases etc.", substitute "a right to mine following a right to explore or prospect".Dems-GWA (126)Schedule 1, item 9, page 97 (line 19), after "38", insert ", unless the parties to the agreement agree in writing that the determination should not have effect, or should have effect as modified by the agreement, in which case the determination has no effect, or is effective as so modified".Dems-GWA (132) [as amended by Opp (R142)]Schedule 1, item 9, page 99 (line 24) to page 100 (line 20), omit section 36, substitute:36 Determination to be made within specified period (1) Subject to section 37, the arbitral body must take all reasonable steps to make a determination in relation to the act within: (a) if the act is the grant of a licence to prospect or explore for things that may be mined—the period of 4 months starting when the application is made; or (b) in any other case—the period of 6 months starting when the application is made. (2) The arbitral body must not make a determination that the act may be done unless it is satisfied that the Government and grantee parties negotiated in good faith as required by subsection 31(1).Report to Commonwealth Minister (3) If the arbitral body is the NNTT and it does not make the determination within the period, it must, as soon as is reasonably practicable after the end of the period, advise the Commonwealth Minister in writing of the reason for it not doing so.Commonwealth Minister may give notice as to urgency (4) At any time after the end of the period applicable under subsection (1) in respect of an application under section 35 that has not been withdrawn, and before either: (a) the negotiation parties have made an agreement of the kind mentioned in paragraph 31(1)(b); or (b) the arbitral body has made a determination under section 38;the Commonwealth Minister may give a written notice to the arbitral body requesting the arbitral body to make such a determination within the period specified in the notice. The period must end not earlier than 30 days after the day on which the notice was given.Harradine (23)Schedule 1, item 9, page 79 (lines 1 and 2), omit paragraph (f).Harradine (25)Schedule 1, item 9, page 88 (after line 11), after paragraph 26D(2)(a), insert: (aa) the earlier act took place after the commencement of this Act; andHarradine (26)/Opp (137)/Dems-GWA (127)Schedule 1, item 9, page 97 (line 20) to page 99 (line 10), omit section 34A.Harradine (27)Schedule 1, item 9, page 100 (line 5), omit "4 months", substitute "6 months".Harradine (28)Schedule 1, item 9, page 100 (line 19), omit "4 months", substitute "6 months".Harradine (31)/Opp (178)/Dems-GWA (146)Schedule 1, item 9, page 113 (line 16) to page 117 (line 14), omit sections 43A and 43B. Harradine (33)Schedule 1, item 34, page 133 (line 11), omit "251C(4) or (5)".Harradine (34)Schedule 1, item 50, page 142 (line 12) to page 144 (line 2), omit section 251C.Harradine (35)Schedule 2, item 78, page 218 (table), omit the item relating to town or city.Freehold testHarradine (18)Schedule 1, item 9, page 71 (line 4), omit "(whether compulsorily or otherwise)", substitute "compulsorily".Harradine (21)Schedule 1, item 9, page 74 (line 24), omit "(whether compulsorily or otherwise)', substitute "compulsorily".ConfirmationOpp (216A) [as amended by Govt (54A)]Schedule 1, item 49, page 140 (line 23) to page 141 (line 3), omit subsections (1) and (2), substitute: A Scheduled interest is anything set out in Schedule 1, other than: (a) a mining lease; or (b) an interest, in relation to land or waters, of a type declared by a regulation for the purposes of this paragraph not to be a Scheduled interest; or (c) an interest created by or under legislation that creates interests only for the benefit of Aboriginal peoples or Torres Strait Islanders; or (d) an interest held by a person on trust for the benefit of Aboriginal peoples or Torres Strait Islanders; or (e) any other interest created in relation to particular land or waters, if at the time an interest covered by paragraph (c) or (d) is held in relation to the land or waters.Dems-GWASchedule 1, item 9, page 14 (lines 24 to 28), omit subsection (9), substitute: (9) An act is not a previous exclusive possession act if: (a) it is the grant or vesting of any thing that is made or done by or under legislation that makes provision for the grant or vesting of such things only to, in or for the benefit of, Aboriginal peoples or Torres Strait Islanders; or (b) it is an act of the Commonwealth (including this Act), a State or a Territory that provides that native title is not extinguished or that any extinguishment is to be disregarded; or (c) it is a grant of land made by the Crown in any capacity to the Crown, or to a statutory authority of the Crown, in any capacity; or (d) this Act otherwise provides that the non-extinguishment principle applies to the act.Dems-GWASchedule 1, item 49, page 141 (after line 3), at the end of section 249C, add: (3) In Schedule 1, a reference to a State or Territory Act or Ordinance is a reference to the Act or Ordinance as at the commencement of this Act.Harradine (2)Schedule 1, item 9, page 17 (line 17), omit "extinguishes", substitute "suspends".Harradine (3)Schedule 1, item 9, page 17 (line 23), omit "extinguished", substitute "suspended".Harradine (4)Schedule 1, item 9, page 17 (line 27), omit "extinguishment", substitute "suspension". Note: The heading to section 23G is altered by omitting "partial extinguishment " and substituting "suspension ".Racial Discrimination ActOpp/Dems-GWA/AGSchedule 1, page 5 (after line 3), after item 2, insert:2A Subsection 7(1)Repeal the subsection, substitute:Relationship with RDA (1) This Act is intended to be read and construed subject to the provisions of the Racial Discrimination Act 1975.Pastoral activitiesOpp (64)Schedule 1, item 9, page 55 (line 15) after "lease", insert "or a mining lease".Harradine (7)Schedule 1, item 9, page 49 (line 26), at the end of subsection (1), add: ; and (e) the future act could lawfully have been performed (with or without authorisation) on the lease prior to 23 December 1996. [section 24GB]Harradine (R9)Schedule 1, item 9, page 53 (line 31), at the end of subsection (1), add: ; and (f)the future act takes place on land which has not been the subject of an approved determination of native title in respect of which the native title rights and interests include a right to exclusive possession of the land.Access rightsOpp (183)Schedule 1, item 9, page 120 (lines 1 to 10), omit section 44C.Harradine (R55)Schedule 1, item 9, page 118 (after line 17), after subsection (3), insert:(3A)For the purposes of paragraph (3)(a), physical access to land is deemed to have been regular up to 23 December 1996 if the person, being a member of the native title claim group had not had regular physical access to the land prior to 23 December 1996 by reason of an act of government or by reason of the person's having been denied physical access to the land by the lessee or someone acting on behalf of the lessee.Question put.12:11:00The committee divided. (The Chairman—Senator S. M. West)8Allison, L. Bartlett, A. J. J.Bourne, V. *Brown, B.Margetts, D. Murray, A.Stott Despoja, N. Woodley, J.31Bolkus, N. Campbell, G.Colston, M. A. Coonan, H.Crane, W. Crowley, R. A.Denman, K. J. Eggleston, A.Evans, C. V. *Ferris, J.Forshaw, M. G. Harradine, B.Heffernan, W. Hogg, J.Lightfoot, P. R. Lundy, K.Macdonald, S. MacGibbon, D. J.McKiernan, J. P. Minchin, N. H.Murphy, S. M. O'Chee, W. G.Patterson, K. C. L. Quirke, J. A.Reid, M. E. Reynolds, M.Schacht, C. C. Sherry, N.Tambling, G. E. J. Tierney, J.West, S. M.Question so resolved in the negative.Sitting suspended from 12.13 p.m. to 1.00 p.m.13:00:001991Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I table a supplementary explanatory memorandum relating to the government amendments to be moved to the Native Title Amendment Bill 1997 [No. 2] . This memorandum was circulated in the chamber on 2 April 1998.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Chapman)—We are dealing with subject No. 1—validation.13:01:001991Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I move:(1) Schedule 1, item 39, page 136 (lines 32 to 34), omit paragraph (8)(b), substitute:(b) the grant or vesting of any thing expressly for the benefit of, or to or in a person to hold on trust expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders; or(2) Schedule 1, item 39, page 137 (lines 16 to 18), omit subparagraph (b)(iii), substitute:(iii) a lease granted expressly for the benefit of, or to a person to hold on trust expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders; orAmendments 1 and 2 amend sections 232B and 232C of the bill to ensure that the vesting or grant of tenures between 1 January 1994 and 23 December 1996 expressly for the benefit of indigenous peoples are not regarded as category A intermediate period acts or category B intermediate period acts in the validation regime. Their exclusion from these categories will mean that they are still validated but are category D intermediate period acts, to which the non-extinguishment principle applies.The amendments are required because the current drafting of the relevant sections, 232B and 232C, excludes the grant or vesting of such tenures only if they are held on trust for the benefit of indigenous peoples. However, it is the case that some grants expressly for the benefit of Aboriginal peoples do not involve land being held on trust. It is the case that the amendments do not exclude a normal grant to an Aboriginal person under general state or territory land acts from category A and B. Those grants are treated in exactly the same way as grants to anybody else.13:02:001992Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I am checking why we have diverted from the running sheet. I know there have been difficulties. According to the running sheet I have—there might be a more up-to-date one—there are the Greens (WA)-Democrats amendments to oppose the section, and the government's amendments to oppose the next section, schedule 1. Have we diverted from the running sheet, or are there some other instructions I have not received?13:02:001992Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—The general intent was to move government amendments relevant to each of the blocks of amendments. If there is a difficulty with doing it that way, I would be happy to discuss it. The general intention was that we deal with government amendments first in each block.13:03:001992Bolkus, Sen NickSenator BOLKUSXE4SAALP00—The amendment to 232B relates to the definition of the category A intermediate period act. The amendment replaces subsection 8B by excluding a wider range of land held for the benefit of Aboriginal and Torres Strait Islander people from category A intermediate period acts and, as a consequence, from extinguishment. The amendment is a more beneficial one over the position passed in the Senate last year. It is not as wide as we have advocated for, but it is beneficial. It is one that, because of its more beneficial nature, we would accept as a second option.In respect of 232C category and 232B intermediate period acts, the amendment here excludes a broader range of grants to Aboriginal people and Torres Strait Islanders from the extinguishing effects of category B intermediate period acts. It also is more beneficial than what was passed in the Senate last year. As a consequence, we would be supporting that as a second option. Senator Harradine, as I mentioned earlier in the debate, has a number of amendments which go to the question of extinguishment. He supports, as we do, the concept of suspension as opposed to extinguishment, and we will be supporting the Harradine amendments. I will get to mine later on.13:04:001992Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I want to address the whole issue of validation in one speech rather than go through it bit by bit. Some of what I say is in support of the Democrats-Greens amendments. I will also be speaking to the government amendments and, as Senator Bolkus pointed out, the other amendments which we will deal with. Senator Bolkus may be able to explain to us—it would be useful to know—whether or not Labor has actually narrowed the gap between the indigenous working group's position, what I believe to be the Democrats-Green position and the position of the government.I made a long speech last time about validation and the problem we have with it. We believe there is no way that you can have a principle in law which says that, having made a bad law or having done things which are illegal, somehow or other you can go back and make those illegal acts legal again. It just seems to us to be a proposition that cannot be countenanced.I accused the Labor Party last time of having an eye to the Queensland election. I am not convinced that that is not still the motivation for the position that has been taken. That worries me significantly. I ask: what is the justification for doing this in defiance of the High Court Wik decision? The excuse which is used by the government, which I have to say I have heard from some in the Labor Party, is that in 1993 there was legal advice floating around that native title would be extinguished on those leases as if, in any other legal case—sex discrimination, industrial relations; take your pick—it would be okay to say, `We're going to legislate in direct contradiction of the High Court because the High Court's decision is not the same as some earlier legal advice.'When you look at it that way, you can see that it is wrong, unfair and, worst of all, racially discriminatory because it would not happen with any other High Court decision. The government's proposed validation of these intermediate leases has, in part, the support of the Labor Party. I hear what is being said, that there are different positions on this, but I need some more explanation, particularly from the Labor Party, about the effect of their position. I cannot see that it is very different from the government position. I am sure Senator Harradine will give us the benefit of an explanation of his amendments, because he always explains fully what he is doing. Even when I disagree with him, at least I understand what he is about.I point out again that those unlawful leases that we are now seeking to validate were issued mostly by the Labor Party in Queensland—about 1,500 out of the 2,000 were issued in the intermediate period between 1994 and 1996. These titles were issued by the Goss government without going through the process of the Native Title Act. It really gets to me that there was a process given to them by the federal Labor government that they could have used, but they said, `We know better.' If you remember, when the 1993 legislation was passed, Mr Goss did not exactly rush down to Canberra, hug the federal Labor Party and say, `Thank you for doing it.' In fact, he said some things that were quite the opposite. I really am still left with the feeling that this is to do with an election in Queensland. I will not predict the outcome of the election. That might not be a good thing to do.EU4O'CHEESenator O'Chee—You won't win.HX5Woodley, Sen JohnSenator WOODLEY—I am not saying who might win, Senator O'Chee. I presume that the federal Labor Party does not want to upset the applecart by going against something that the Queensland Labor Party did in government. We do not know where Mr Beattie stands on the discriminatory validation of pastoral leases where native title may exist because he has not told us. It is important that we put these facts on the record. If Senator Bolkus has a reply, I will listen carefully. Again, as with Senator Harradine, Senator Bolkus usually explains his position very well.These are the problems, and this is the sad history that we are dealing with in Queensland. The history of Queensland is not a happy one when it comes to protection of native title rights or protection of Aboriginal people. I read some of the history into the record. It does not matter how far back you go or how recent is the history you examine. The record of both Labor and coalition governments in Queensland is really quite appalling in this respect. That is very sad.My friend Senator Boswell interjected the other day, `We shouldn't go back in history.' I say to Senator Boswell in case he is listening—and I will repeat it when he comes in—history is very important. Are we going to say that the history of the abuse of Aboriginal people in Queensland is not important, but the history, for instance, of the Anzacs—going back to 1915—is, or that the history of the Vietnam veterans is not important; that we should discount that because it is something that happened 30 years ago? History is very important. I am afraid that history reflects a very sad story.Former Queensland Premier Wayne Goss has come a long way in recent days in embracing native title. I am very pleased about that. But, when the Mabo legislation was introduced in 1993, he was less than complimentary about that legislation. I can give you some examples. Mr Goss said on ABC radio on 23 July 1993 that uncertainty over an earlier native title claim by the Wik people over the land near Weipa in Far North Queensland had to be removed to secure Comalco's mining project. Mr Goss said:That uncertainty is of concern, and we believe that the company, the State Government and the Federal Government are going to have to co-operate to remove it.There is not a lot of support for co-existence or recognition of Aboriginal rights there. It is really saying, `Get out of the way, native title holders. Comalco's coming through.' I could provide a lot of quotes about this whole issue. The problem has been that even Labor governments, particularly in Queensland, have not used the Native Title Act 1993. They have ignored the processes. They have got themselves and this parliament into the situation of now having to decide whether it will make legal acts which were quite illegal at the time. I will leave it there and, if there is another contribution I can make a little further in the debate, I will do so.13:14:001994Bolkus, Sen NickSenator BOLKUSXE4SAALP00—A question was directed to me by Senator Woodley. The question was whether the opposition felt that the government amendments were more beneficial than the position that left the Senate last year. As I explained earlier on, and probably I need to explain it a little more elaborately, we have a definition of the category of intermediate period acts—category A ones and category B ones. Category A ones are handled by section 232B and category B ones are handled by section 232C.The amendment that the government has moved relates to the definitions of category A and category B. With respect to both, the amendment replaces subsection (8)(b) which went through the Senate last year, which we were not able to amend. It does so by excluding a wider range of land held for the benefit of Aboriginal and Torres Strait Islander people from category A intermediate period acts and it excludes a broader range of grants to ATSI people from the extinguishing effects of category B intermediate period acts.So basically what we have here is a wider range of land being excluded from the extinguishment regime. As a consequence, it is more beneficial than the provision that got through last year. I also place on record that it is not the desired outcome that we fought for last year and that we would still want and that we would look at in government. It is much too broad, but it goes some way towards the national indigenous working group position, it goes some way towards the position we moved last year and it moves from the position that passed through the Senate last year. We do see it as beneficial and for that reason we are supporting the amendments.Amendments agreed to.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Chapman)—The question is that schedule 1, item 39, stand as printed.13:17:001994Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—We have dealt with some of the issues, and validation has been mentioned already. It is a particularly onerous thing for people from states like Western Australia and, as Senator Woodley has suggested, from Queensland, where you clearly see that the governments involved have been involved with taking part in acts that can only be described as being designed to remove the rights of indigenous Australians.We have situations in Western Australia where land sales took place in areas which were clearly subject to native title claims. Information was sent to prospective buyers saying, `Don't worry, the Western Australian government will guarantee you against native title claim.' How could they have done that legally? Perhaps they knew that if push came to shove, someone would validate those acts.How can we sit down and watch whilst very large parcels of land—during the course of this debate I am hoping to present the actual amounts in states like Western Australia—actually being transferred between states in an ongoing process of removing rights for indigenous Australians? We would prefer to see this entire section removed from the bill, and that is certainly what I will be seeking to move. They give indigenous people the right to choose whether they wish to enjoy their rights to negotiate with regard to these illegal, often mining, projects.There are very large issues of basic justice. There are very important issues as to what happens at the end of this legislation if there are still teeny-weeny elements of rights left in this bill that the government has not seen and stomped on in the process. What signal does that send to governments at the end of this legislation? I would argue that the signal it sends is, `If you find any piece of land that somebody else wants and does not want to participate in any reasonable process of native title, go ahead and do what you want. Transfer the land in an illegal way and the federal government, with the assistance of the opposition perhaps, may assist you in validating whatever it is you have done which you should not have done.' None of the assurances that this government gives are worth anything whilst we clearly have rewarded those people who have flouted the law.If this was a social security applicant who had filled out a form wrongly, we would be down on them like a ton of bricks. We are not talking about $10 or a week's social security benefit; we are talking about people's lives and the meaning of many people's culture. We have said to state governments, `This is all right, you can do it in the past. We will give a tick for doing what you have done in the past. What's more, you will be able to do it in the future. We will come back in the parliament at a later date and we will validate that too.' I do not think it is good enough. I think it is necessary for people to take responsibility for what they have done. Therefore, we oppose the schedule.13:21:001995Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I want to support Margetts in what she said and try to make an appeal to everybody to understand the importance of opposing this particular piece of legislation. I want to turn to legal advice because a lot of legal advice has apparently been flying around, but we have not seen much of it, except for Senator Harradine. He made his legal advisers available to us. We were very grateful for that. We were able to get from his legal advisers a very clear indication of the reasons and the legal basis for the amendments that he is moving. But in terms of the government and the opposition, that has certainly been a problem for us. The Senate would know that we quite vigorously pursued the government to try to get some key pieces of legal advice on the constitutionality of their bill. I grant that the minister and the government gave me an explanation in a letter, but they did ignore a resolution of this Senate and did not fulfil that direction from the Senate. That is a black mark against them.I must say that we are also not sure about some of the legal advice that the Labor Party has received, except what we can read in newspapers. I noticed in the Sydney Morning Herald last Tuesday week that Mr Alec Shand QC said that the bill was racially discriminatory in many areas, including validating past unlawful acts of the Queensland and West Australian governments which deemed the extinguishment of native title on thousands of leases. We know that the ALP has had legal advice from a top QC saying that the validation of intermediate period acts is racially discriminatory. We really need to know how it is they can therefore support racially discriminatory legislation. The amendment we have moved on behalf of the Greens and the Democrats is an amendment that is supported by the National Indigenous Working Group. You can understand the fog we are in, at least in terms of the legal advice to the government and to the Labor Party.It seems that Mr Shand's advice went to the matter of the government bill, yet on Wednesday of last week Mr Beazley was quoted as saying on ABC radio:We have advice that what we are putting forward is 100 per cent kosher as far as the constitution is concerned, which differentiates our amendments dramatically from the government bill asit now stands.Mr Shand's advice contradicts that. We do not know what the advice is that the opposition is depending on. If we did know, then perhaps we would be a lot more confident in voting one way or the other. The ALP says that the legislation is 100 per cent kosher. However, Mr Beazley's words create a false impression for me. That is why I am still asking whether or not we could have some indication of what that legal advice was.I want to make a final point. The Howard government and the National Farmers Federation have been travelling all over the country claiming that they have to extinguish native title on pastoral leases to help farmers. The Democrats asked some questions about that claim. We asked the Queensland government how many pastoral had been issued in the state since the Native Title Act was passed in 1994. We wanted to know how many farmers' leases were potentially invalid. The answer was not one. That is what the Queensland government told us. Not one pastoral lease has been issued in Queensland in the intermediate period between the Native Title Act 1994 and the Wik decision in 1996, or at least that is the advice to us. The validation issue is one area where I still believe that Labor and the government are almost as one. We have to ask: who is being protected here? The other part of our question to the Queensland government was: how many mining titles have been issued in the intermediate period? The answer was 2,163 mining tenements were issued in that time. The figures give the lie to the government's claim that their validation plans are about helping pastoralists. It seems to me that they are perhaps about helping somebody else. A speech the Prime Minister gave some time ago on a Sunday night conspicuously referred to farmers throughout. There was only one mention of the mining and resources industry, but the speech constantly referred to farmers, the concerns of farmers, the need for guarantees for farmers and how sad it would be if Australia did not have a rural sector. I have to wonder if the Prime Minister was playing down the fact that mining companies are the ones who stand to gain most from his extinguishment plans. That is the problem. If we are not helping miners, are we so concerned that it is struggling Aussie battlers like Rio Tinto, BHP and Western Mining we are helping? That is what the Howard government wants to do. I wish the Labor Party would not help them do it.The Democrats have nothing against the mining sector per se, but I do get disturbed when people like Queensland Premier Rob Borbidge say that Aboriginal people are greedy because they are asking for some control over their land near the site of the Ernest Henry mine, for example, when these figures show that successive state and federal governments have bent over backwards to give the green light to mining, even if it means unnecessary extinguishment of native title. I support strongly the Greens-Democrat amendment moved by Senator Margetts. We oppose this item because we believe it is racially discriminatory. It certainly ought to be opposed.13:29:001996Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I want to respond quickly to a couple of points without debating all these sections. There are just a couple of things that should be said on the record. In terms of the constitutionality of the validation regime, the Native Title Act itself contains a much wider and much broader validation regime than this one which effectively validated everything that occurred before 1 January 1994. That, of course, has been upheld by the High Court as a valid constitutional instrument. Ours is a more limited validation regime and, consistent with the High Court's decision in the native title case in 1995, would be constitutional.In terms of the assertion of illegality, it was presumed by the previous government—and by all state governments therefore—that, according to the judgment of Chief Justice Brennan, the lead judge in Mabo, the grant of a leasehold estate had extinguished native title, and governments quite properly acted on that basis. That presumption was overturned 4-3 in Wik. As a result, we have had to deal with the consequences of what happened between 1 January 1994 and 23 December 1996, based on reasonable presumptions. In that time there were 22,830 titles issued around Australia—some 19,742 were mining and 3,088 were other land titles.I just want to pick up quickly what Senator Woodley said. This overwhelmingly does quite openly deal with the validation of mining leases, quite properly and in good faith issued during that period, which do create jobs and wealth—and for Aboriginal people in many respects. The assertion was made that the mining industry gains from the federal government's extinguishment plans. Could I please urge you to deal with the facts of this bill, so that when you speak on it you speak with the knowledge of what we are dealing with.Mining is a category C intermediate period act which does not extinguish. So, when the mining lease is validated, the bill provides that it is according to the non-extinguishment principle and it does not extinguish the native title. There is full compensation for any impairment of the native title, but the title is not extinguished. We are talking about the validation of a title issued which, as I say, relates to investments made, jobs created and wealth generated. But please remember that we are talking primarily in relation to validation of titles about mining leases, and they do not extinguish.13:32:001997Brown, Sen BobSenator BROWNQD4TASAG00—I find Senator Minchin quite remarkable. He is able to stand up and say that there was a whole stack of illegal, as it turned out, appropriations of properties as far as indigenous people's rights are concerned but that it was good for them—it was good for the indigenous people because mines produce jobs—and, with a wave of the hand, he explains the inexcusable. Senator Margetts is absolutely correct: what this is saying, if the government gets away with it, is that you can validate illegal acts which were to the detriment of the indigenous people of this country and which foreclose on their ability to have valid claims made on their own land—those acts having been made between 1994 and 1996—and you can do it in the future. That is exactly what this says.If you are looking from the point of view of the indigenous community, it is retrospective legislation to validate wrongful actions. Of course, that is what rarely happens in this place. You look from the point of view of the miners and you look from the point of view of the people who have got tenements and so on—without any discussions with the indigenous people—and you say, `It was good for them; it must be good for the indigenous people.' That is patently illogical—it is not so. You have to leave that to the indigenous people to judge at least.When it comes to Senator Woodley's assertion that this is racially discriminatory, it does point to the need for a very tough insertion of a caveat into this legislation to make sure that the Racial Discrimination Act is predominant over the legislation. In 1972, at the height of the furore over the flooding of Lake Pedder in Tasmania, conservationists approached the then Attorney-General, Merv Everett, for a fiat to take action against the government because it was illegally flooding the Lake Pedder national park. The Attorney-General sought advice and found that that was the case. The Premier, Eric Reece, would not have it and the Attorney-General resigned. The Premier then turned down the fiat that the conservationists should have had and restored the Attorney-General to his post. In the meantime, he brought in retrospective legisla tion to validate the illegal act of the Reece government of Tasmania in flooding the Lake Pedder national park.I understand at the moment that Marie Tehan, the minister for the environment—or, at least, that is one of her labels—in Victoria is considering bringing in retrospective legislation to validate the illegal logging of the Goolengook heritage river zone in East Gippsland, which took place after the RFA, the regional forest agreement, was signed between Prime Minister Howard, who is equally complicit in this matter, and Premier Kennett in February last year. So it is bringing in retrospective legislation to make the illegal legal.In both those instances, heinous as they might be, the whole of the community lost. But in this instance it is the indigenous community who loses. They selectively lose out. That is racial discrimination, and that is where Senator Woodley and Senator Margetts are absolutely right. First of all, it points to the need for this committee not to allow the government to get away with this but to support this Democrat-Greens amendment. It underscores the need in the next section of the committee's deliberations to ensure that we do get a watertight caveat on this legislation that the indigenous people of this country cannot be discriminated against by this sort of provision in this legislation, which otherwise stands as racially discriminatory legislation—as Senator Bolkus described it last night. That is what it is. That is as plain as day.I totally support this amendment. I, of course, hope that the opposition and Senator Harradine will do likewise, although I would hold out little hope for the government to come up with a change of heart which will ensure that such racial discrimination is not implanted in this legislation.13:37:001997Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I would like to ask the minister a question because, during his response, he gleefully threw over to the Senate that states like Western Australia and Queensland could not have known, therefore setting them in the role of innocent parties. We know that the Western Australian government set about a very expensive legal challenge to the 1993 Native Title Act and, in 1995, the ruling of the High Court was such that the Western Australian government embarked on a future act process.Minister, I wonder if you can give us an answer again. The Western Australian government embarked on a future act process. Would you still consider that Queensland did not know that they should have embarked on a future act process?13:38:001998Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—The Western Australian case had absolutely nothing to do with the legal question as to whether or not native title had survived on pastoral leases. That matter was not determined until the Wik case. The Western Australian case was about the proposed Western Australian legislation by which they were creating statutory native title. Once they lost that case, they decided, of their own volition, to be ultra cautious. But based on Chief Justice Brennan's lead judgment in Mabo, the position of the Keating Labor government, the clear statements in the Native Title Act, the accepted wisdom of the land as to where native title applied and, indeed, statements by people like Noel Pearson who made it clear that they would not be making any claims over pastoral leases, it was reasonable for state governments to act on the presumption that native title had been extinguished by pastoral leases.13:39:001998Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Perhaps the minister could remind the committee when the Wik case began.13:39:001998Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—The Wik case was determined on 23 December 1996. The claim was first made, I think, in about 1993. Anyone can make a claim, of course. That does not go to the question of what it was reasonable for people to presume based on the lead judgment in Mabo by Chief Justice Brennan where he made it clear that grant of a leasehold extinguished native title. Of course, the presumptions about Chief Justice Brennan, and therefore the majority in Mabo, were found to be reasonable because of the position Chief Justice Brennan took in the Wik case where he and two other judges did find that a pastoral lease does completely extinguish native title, therefore upholding the reasonableness of those who took their lead from Chief Justice Brennan, including the whole of the Keating Labor government which clearly assumed that native title had been extinguished by the grant of a pastoral lease.We now know, by the 4-3 judgment, that that was not correct and we now have to correct the situation as to titles issued in good faith from the time of the Native Title Act coming into effect and the Wik decision. We have done it in a way that we think is very fair and very reasonable and the only sensible course of action for the parliament and the nation.13:40:001998Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I thank the minister for his answer. In fact, he confirms the contention that the Democrats and I presume Senator Margetts were making. I do not know about the situation in Western Australia but I certainly know about the situation in Queensland, and the Wik people had already begun a very serious court case on this whole issue. It was quite clear to the Queensland government that that was a case which impinged directly on the whole question of whether or not native title could coexist on pastoral leases. In a very cavalier way, they decided that they would not take the precautionary principle into account which would have been, `Therefore, we will use the Native Title Act 1993 so that we do not act in illegal way.' They said, `No, we're not going to bother. We'll trust to Brennan,' or whatever advice they might have had, and I am not sure that they were quite so clear in terms of Justice Brennan's comments. But they knew, against whatever Justice Brennan might have said, that there was the Wik case already before the High Court prior to the actions that they took.It would seem to me that it was a very cavalier act on the part of the Queensland government, in particular, to have proceeded without using the means that they had. They could have proceeded and acted totally legally if they had used, I think, section 29 of the Native Title Act, and there would not have been this problem. Should we reward that kind of attitude which says, `Here we have a perfectly legal way of doing something, but we're not going to use that. We're going to go down this road because we really don't care,'? I do not think anyone should be excused from that kind of attitude, which has been taken by Queensland governments for at least the last 100 years when it comes to native title. We simply cannot reward that kind of attitude by then going back and saying, `Fellas, you made a mistake, but don't worry about it. We'll fix it up. We'll retrospectively validate what you did.'13:43:001999Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I spent about 20 minutes on this issue before lunch. It needs to be put on the record that during the last debate on this last November-December the opposition did have some problems with what is before the chair at the moment in the government's proposal. Before lunch I indicated what those problems were, but we did not go as far as opposing the whole schedule. As a consequence of that, we cannot support the amendment, although, as I said before lunch, we still have those problems. It would not be the way we would go now and it will not be the way we will go in government.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Hogg)—The question is that schedule 1, item 39 stand as printed. Question put: That schedule 1, item 39, stand as printed.13:48:00The Senate divided. (The Deputy President—Senator S. M. West)45Abetz, E. Alston, R. K. R.Boswell, R. L. D. Bolkus, N.Campbell, G. Campbell, I. G.Carr, K. Chapman, H. G. P.Collins, J. M. A. Colston, M. A.Cook, P. F. S. Coonan, H.Crane, W. Crowley, R. A.Denman, K. J. Eggleston, A.Ellison, C. Ferguson, A. B.Ferris, J. Forshaw, M. G.Harradine, B. Herron, J.Hogg, J. Kemp, R.Lundy, K. Macdonald, I.Macdonald, S. Mackay, S.McKiernan, J. P. Minchin, N. H.Murphy, S. M. Newman, J. M.O'Brien, K. W. K. O'Chee, W. G. *Parer, W. R. Patterson, K. C. L.Quirke, J. A. Reid, M. E.Reynolds, M. Schacht, C. C.Sherry, N. Tambling, G. E. J.Vanstone, A. E. Watson, J. O. W.West, S. M.8Allison, L. Bartlett, A. J. J.Bourne, V. Brown, B.*Margetts, D. Murray, A.Stott Despoja, N. Woodley, J.Question so resolved in the affirmative.13:51:001999Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I was most grateful that Senator Woodley acknowledged that I and my legal advisers had been able to brief him on certain matters. I do want to raise this question of the legal advice that people are getting. I am not in a position to, nor should I, I believe, seek the legal advice that various individual senators or parties are given in respect of the various clauses, or indeed in respect of the amendments that are before us. So far as I am concerned, I feel that the buck stops here in the parliament and the responsibility is on the shoulders of each and every one of us. It may well be that legal advice is sometimes given that one should support certain amendments or move further amendments, but the ultimate decision as to whether one does that is surely the responsibility of the individual senator or the party concerned. Nevertheless, we are charged with the duty of having our minds informed on what are often very technical and complex issues. Everybody agrees that this legislation has that aspect.For my part, I am most grateful for the assistance that has been given to me in a legal sense and the legal advice that has been provided to me by John McCarthy QC and Jeff Kildea. They in fact were the counsel for the first successful native title claim on the mainland, for the Dunghutti people in the famous Crescent Head case. John McCarthy has been a Sydney QC for 10 years, and Jeff Kildea has had extensive practice in land and environmental law and has written on these particular subjects. I just wanted to make it clear to the committee that, whilst I am happy to have those counsel, who have given generously of their time, give advice to others around here, they are fairly well flat out at the present moment acting on my instructions, which are fairly narrow instructions, as to what might eventuate, hopefully, next week.13:56:002000Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I move:(174) Schedule 1, item 39, page 134 (lines 21 to 29), omit paragraph (b), substitute: (b) the act did not consist of the making, amendment or repeal of legislation; and(175) Schedule 1, item 39, page 135 (lines 8 to 16), omit paragraphs (e) and (f), substitute: (e) before the act was done, a past act took place consisting of the grant of a pastoral lease that was not the subject of an express reservation permitting access to Aboriginal peoples or Torres Strait Islanders, and when the act was done the lease was in effect and either: (i) the lease was granted before 1 January 1994 and was in force on 1 January 1994; or (ii) the lease was granted on or after 1 January 1994 and the grant was a past act because of subsection 228(3) or (9); and (f) the act: (i) was a pastoral activity; or (ii) was any other act that is a Gazetted act (see section 22AA) and that did not: (A) interfere with the community life of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; or (B) interfere with areas or sites of particular significance, in accordance with their traditions, to the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; or (C) involve major disturbance to any land or waters concerned.I will also speak briefly to amendment 176 because that is a consequential amendment. What we are now talking about is a model for a compromise, and it is an extraordinarily generous compromise at that. The compromise comes from the position of the National Indigenous Working Group.When we dealt with this in 1997 I mentioned that I did not think that this compromise was anyone's preferred option. We have just presented to the Senate the Greens (WA) preferred option. What we are dealing with here is a provision which validates pastoral activities as defined and activities associated with existing lease purposes. All grants and acts that it is believed may require validation can be done in one of two ways. Firstly, by an agreements process where the government gives notice of the act it says should be validated. There would be a six-months negotiating period to obtain validation by agreement and if there is no agreement, a decision is made by the National Native Title Tribunal.Secondly, minor impact acts or acts that would have been subject to the expedited procedure are validated upon gazettal of the particular act if they do not interfere with community life of native title holders, interfere with sites of significance or cause major disturbance on pastoral leasehold which is not the subject of a reservation or access for indigenous people.If you think about it, what would people be saying if they did not support this? They are saying that if you have acts in this process that we have debated already—that is, the validation of acts which, firstly, interfere with community life of native title holders or, secondly, interfere with sites of significance or, thirdly, cause a major disturbance—why on earth would we not be allowing this process of agreement and validation which involves indigenous people to take place?We are dealing here with amendment Nos 174 and 175. Amendment 174 removes from the definition of intermediate period acts under section 232A legislation which itself creates a freehold estate, lease, licence or reservation of land for a purpose. Amendment No. 175 limits intermediate period act under section 232A to acts which take place on pastoral leasehold without a reservation of access for indigenous people and which are associated with pastoral activity or do not interfere with the community life of native title holders, do not interfere with sites of significance and do not cause major disturbance. I think that that is reasonable. As I say, it is extraordinary generous.Amendment No. 176 is a consequential amendment removing the definitions of the various categories of intermediate period acts. I realise that we will be voting on the separately.13:59:002001Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—This is an eminently sensible compromise. As Senator Margetts said, it is incredibly generous. It gives lie to the claim that the National Indigenous Working Group are set in concrete and that they have never shifted on their position. They have bent over backwards to try to accommodate the government, the opposition and all of us—and we should realise that they owned the whole of this country prior to 1788. They have bent over backwards to try to find a way through which would enable all of us to share in the benefits and to contribute to the prosperity of this country.So, in supporting this amendment, let me just underline for the committee that what we are talking about is an offer by indigenous people which, as Senator Margetts said, is incredibly generous, given that by the Mabo decision of the High Court the whole idea that they owned nothing was struck down; that no longer is part of Australian law. I would commend to the committee these amendments which I think should in fact be supported.Question resolved in the negative.10000CHAIRMANThe CHAIRMAN—The question is that schedule 1, item 39, sections 323B and 323E stand as printed.Question resolved in the affirmative.10000CHAIRMANThe CHAIRMAN—It is taken that leave is formally granted for amendments grouped on the running sheet to be moved together.14:02:002001Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I move:(13) Schedule 1, item 9, page 8 (after line 23), at the end of section 22D, add: (3) If there is no agreement as to the amount of compensation, a person or persons authorised by the compensation claim group (see section 61) may apply to the Federal Court for a determination of compensation. (4) The Federal Court must refer the matter to the NNTT if the claimant so requests, or consents.Establishing native title (5) If the Federal Court or the NNTT is satisfied that: (a) the application satisfies the requirements of section 190B; and (b) there is sufficient evidence to establish on a prima facie basis that native title exists or would, but for the effect of this Subdivision, have existed in relation to the area the subject of the act; then, subject to subsection (6), the members of the compensation claim group are entitled to compensation. (6) The Commonwealth may apply to the Federal Court or the NNTT for a declaration that native title does not exist in relation to the area the subject of the intermediate period act. If it does so: (a) it bears the onus of proving that native title does not exist, or has been extinguished by another act (pre-dating the intermediate period act); and (b) it must pay all the costs of the proceedings.(N1) Schedule 1, item 9, page 10 (line 27), omit "and 22C", substitute ", 22C and 22D".These amendments are just as important this time around as they were the first time. What you have in this area of debate is government, as has been rightly said, taking property rights of one sort or another, and doing so in an attempt to validate what we have always maintained to be an excessive overreach of interests. It is important in these circumstances to ensure that, where indigenous Australians have their property taken away—as any white person in this community would expect and demand—they have a right to compensation. We are talking here about a system of fast track acquisition, so to speak, retrospective acquisition. The only way that one can, in all sense of fairness and equity, respond to that is to ensure that the compensation paid to the people whose interests have been taken away is also provided by way of a fast track approach.As I said earlier, this amendment was moved in December 1997. It gives native title holders, who are the big losers in the government's validation process, a fast track process for compensation for native title—rather than stakeholders being put to the expense of long, drawn-out legal proceedings and state governments being put to expense.We are proposing a compensation regime which will provide a fair balance, a fast track compensation payment, but also will ensure that there must be a prima facie case established in the first instance and that there is a pressure valve which allows the Commonwealth to argue before a court that native title did not exist at the time the intermediate period act occurred. I think fairness demands this; but I would argue that constitutional certainty would demand it as well.So amendments 13 and N1 come together. They do provide for this fast track compensation regime. I think it is the least the parliament can do to ensure some fairness in this system.14:04:002002Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—The government does not support these amendments. We do have some concerns about what is being proposed here. Essentially, as I understand it, it ultimately provides that compensation has to be paid if the application for compensation appears to satisfy the requirements of part of our registration test for native title claim and there is enough evidence that prima facie native title exists or, but for the validation of the intermediate period act, would exist.So it is, effectively, in our view, a reversal of the onus of proof as to whether native title exists, remembering that, by and large, we are talking about pastoral leases where—remember—the High Court said that it is not necessarily the case that no title has been extinguished, it may well have been extinguished, but that is a matter for determination. According to the legislation under which the lease is issued and the terms of the lease, there is still no declared or determined native title on any pastoral lease in Australia—not even in the Wik case. So the whole question of what, if any, native title does exist on a pastoral lease still remains for considerable judicial determination.So we are not in a position to accept this compensation regime on this basis. In terms of the technicalities, it is my advice that there are clearly some drafting anomalies in what is proposed that could lead to considerable confusion. And, as I say, we do think that it is an unwise path to go down to suggest that the onus of proof be reversed. We still think the onus rests with native title claimants to establish their native title rights and interests.We do understand and sympathise with the proposition that there be a faster mechanism by which compensation can be determined. We are proposing that the whole mechanism for dealing with native title claimants be speeded up and dealt with more efficiently and all claims, including compensation, referred to mediation. We are providing a later amendment to allow the Federal Court to determine a claim for compensation by the registrar for smaller claims. So, in the light of that, and in the light of anomalies which I will not go into in any detail unless I am asked to, and because of the government's policy position in relation to the question of proof of native title, we do not support these amendments.14:07:002002Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—The logic just displayed by the minister is mind-boggling. We have already talked about the fact that we are dealing with the issue of validation—that is, rewarding states for what have clearly been found to be illegal activities. Those people who have been wronged by virtue of those illegal activities are then required to have the onus of proof on them. They are the ones who have to prove they have been wronged. I cannot believe the minister thinks this is a reasonable legal precedent. I am quite clearly indicating that we will be supporting the opposition's amendments 13 and N1 to expedite the compensation in these cases.14:08:002003Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—The Democrats will certainly support this amendment. As pointed out by Senator Bolkus, it is a fall-back position and one would have thought probably a minimum of what you could reasonably expect anyone would accept. That is, having had their land taken away retrospectively by validating illegal acts, at least those who have been dealt with in that way would be entitled to compensation. What Senator Bolkus is proposing is a way in which that can happen and can happen speedily. For those reasons, we certainly want to support this amendment.14:08:002003Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I will not prolong this, but you must remember that native title is based on Mabo on the proposition that it is open to those who believe they hold native title to come to the courts of Australia and establish—and the onus is on them to establish—that they have maintained their traditional connection with the land and that there is no act of the Crown which has extinguished their native title.The High Court has made it clear where the onus lies in terms of establishing native title. We are talking in these cases of native title not having been determined. If there is a determined native title holder, they are automatically entitled to compensation. In the validation regime there is no determined native title. The High Court has made it clear as to where the onus lies. The onus lies on those who claim native title to establish to the satisfaction of a court that they hold it. If it has been impaired or extinguished, they are entitled to compensation.14:09:002003Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I have not heard anything since the last occasion when this matter was dealt with in this chamber to convince me to vote another way. I must say that the argument that was put forward and clarified in his second response by Senator Minchin is one which convinced me last time not to support this particular proposition.Amendment not agreed to.10000CHAIRMANThe CHAIRMAN—The question is that schedule 1, item 9, division 2A stand as printed.14:11:002003Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—One of the preferred options of the Greens (WA) is to clearly remove those schedules of the act which we find appalling and which justify the actions we believe are illegal—and have been shown to be illegal—that have been taking place by state governments. Therefore, we are seeking to excise section 2A—part way down page 6 to page 9—from the bill. We are basically saying to the government, `go back, start again and do it better—if you are going to deal with these issues, deal with them in a just way in the future.'Question resolved in the affirmative.14:12:002003Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—The next group of amendments are consequential on Greens (WA) amendment 173A or Greens-Democrat amendment 176 being successful. Quite clearly, the Senate did not see fit to deal with the issue of fairness on this issue so there is no point in my moving them at this stage.14:13:002003Bolkus, Sen NickSenator BOLKUSXE4SAALP00—Are all the amendments in group 7 consequential?10000CHAIRMANThe CHAIRMAN—Amendments 250 to 253 are not consequential.XE4Bolkus, Sen NickSenator BOLKUS—I thought Nos 8, 9, 10 and 11 may not have been as well. To complete what I was about to say, our understanding is that last time we supported amendments Nos 8, 9, 10 and 250 to 253, and we are prepared to do the same this time. We did not support No. 11 last time.10000CHAIRMANThe CHAIRMAN—Senator Margetts, does that help you?14:13:002003Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—It does. I move:(8) Schedule 1, item 9, page 7 (after line 11), at the end of section 22A, add:(2) An act (other than an intermediate period act, but not an act consisting of the making, amendment or repeal of legislation) done after 1 January 1994 and before 23 December 1996 is also valid if: (a) it is done in relation to an area of land or waters over which there is, or was at the commencement of this section, a valid interest (the underlying interest ) held otherwise than by or on behalf of the Crown (except native title rights and interests); and (b) the act would have been valid if there were no native title rights and interests in relation to the land or waters; and (c) if the act was done under an authority, permission or licence granted by the Commonwealth, a State or a Territory—it notifies the representative body for the area within 3 months after the commencement of this section that it wishes to enter into an agreement in relation to the act; and (d) either: (i) the Commonwealth, the State or the Territory and the representative body reach agreement, within 6 months after the commencement of this section, as to the terms on which the act is valid; or (ii) the Commonwealth, the State or the Territory refers the matter for determination by a member of the arbitral body appointed by the President.(3) However, the Commonwealth, the State or the Territory cannot refer the matter for determination as mentioned in subparagraph (2)(d)(ii) without the consent of the representative body until after the end of 90 days from the day on which notice was given to that body under paragraph (2)(c).(4) A notice under paragraph (2)(c) must: (a) identify the nature of the act; and (b) set out such details of: (i) the scope and number of the acts concerned; and (ii) the areas of land or waters concerned; and (iii) the underlying interest concerned;as is practicable for the Commonwealth, the State or the Territory to provide.(5) If an agreement under this section or a determination of the member of the arbitral body specifies that the act is valid, the act is valid accordingly.(6) If an agreement under this section or a determination of the member of the arbitral body is conditional, the conditions may be enforced in a Court by a party to the agree ment or by a person who might reasonably expect to benefit from the condition.(7) A period referred to in subsection (2) or (3) may be extended at any time by agreement between the Commonwealth, the State or the Territory and the representative body.22AA Validation of Gazetted acts(1) An act is a Gazetted act if the conditions in this section are satisfied.(2) The act must have been attributable to the Commonwealth, a State or a Territory and the Commonwealth, the State or the Territory must, within 4 months after the commencement of this section: (a) have published in its Government Gazette a notice (that complies with subsections (3), (4) and (5)) describing the act; and (b) have given a copy of the notice to the representative body or bodies for the areas concerned.(3) The notice must include: (a) a description or cadastral information sufficient to identify the land or waters concerned including, in the case of registered land, details of the certificate of title; and (b) a description of the act according to the nature of the interest or permission granted by the act; and (c) information as to the place and time at which members of the public may (without fee) inspect a copy of the document that constitutes or evidences the act.(4) If the document referred to in paragraph (3)(c) is not the one that constitutes the act, the notice must also include all relevant details about the act, including: (a) the person or persons to whom the interest or permission was granted; and (b) the identity of the person who was responsible for the grant; and (c) details of any conditions to which the grant was subject.(5) The notice must specify a period of at least 90 days after its publication in the Government Gazette within which proceedings may be taken in the Federal Court by a representative body or a member of a native title claim group seeking an order that this section does not apply to the act on the basis that: (a) it was not an intermediate period act; or (b) the requirements of this section were not complied with.(6) One of these must be satisfied: (a) no proceedings are taken in the Federal Court as mentioned in subsection (5); or (b) proceedings of that kind are taken but the Court does not make an order that this section does not apply to the act.(9) Schedule 1, item 9, page 7 (line 12) to page 8 (line 5), omit section 22B and the note, substitute:22B Non-extinguishment principle to applyIf an act that is valid under section 22A is an act attributable to the Commonwealth, the non-extinguishment principle applies to the act.(10) Schedule 1, item 9, page 8 (line 16), omit "in section 22B".(11) Schedule 1, item 9, page 11 (line 5), at the end of subsection 22G(1), add "and, if that compensation does not ensure that, if the act were a paragraph 51(xxxi) acquisition of property from any person having been made otherwise than on paragraph 51(xxxi) just terms and if additional compensation could rectify that failure, to such additional compensation from the Commonwealth as is necessary to ensure that it is".That will teach me not to believe the running sheet deals with all of those sections in the box. It is only section 7 that appears to be consequential. I am grateful to Senator Bolkus for that. We are dealing now with Greens (WA)-Democrat amendments 8 to 11.The Greens (WA)-Democrat amendment 8 provides a mechanism for governments to validate certain intermediate period acts by agreement. That is in addition to section 22A. It would have been activated by the government giving notice to the representative body within three months of the commencement of the new provision. It involves negotiations for up to six months—not a great ask we believe—from the date of commencement of the section.It gives the government an incentive to move promptly to identify relevant acts and seek validation by agreement. It provides a gazettal process for any validation of intermediate period acts. Provisions are also made for the challenge of gazettal where there is doubt about whether the act in question falls within the definition of intermediate period acts. That is new section 22A.Our amendment 9 replaces the government's complex scheme based on the current past act categories with a simple provision which states that the non-extinguishment principle applies to any validated intermediate period act. Of course, we are all looking for clarity in this process. Amendment 10A is a consequential amendment. Amendment 11 is a provision to ensure the Commonwealth must top-up state and territory compensation for the validation of intermediate period acts if it is less than just terms. If by this action the Commonwealth is allowing this to happen, then it is not unreasonable to suggest that the Commonwealth should cough up some funds to enable this to happen.10000CHAIRMANThe CHAIRMAN—Senator Margetts, you may wish to have amendments 8 to 10 and amendment 11 voted on separately. I am getting indications from the opposition that they will support amendments 8 to 10 but not amendments 10A and 11.DX5Margetts, Sen DeeSenator MARGETTS—This is a very good example of where the automatic bunching might not be a good idea.10000CHAIRMANThe CHAIRMAN—I think it is a very good idea. You have spoken to amendments 8 to 11, but we will put them separately. Question put: That amendments 8, 9 and 10 (Senator Margetts's and Senator Woodley's ) be agreed to.14:21:00The committee divided. (The Chairman—Senator S. M. West)29Allison, L. Bartlett, A. J. J.Bolkus, N. Bourne, V.Brown, B. Campbell, G.Carr, K. Collins, J. M. A.Conroy, S. Cook, P. F. S.Crowley, R. A. Denman, K. J. *Evans, C. V. Faulkner, J. P.Forshaw, M. G. Hogg, J.Lundy, K. Mackay, S.Margetts, D. McKiernan, J. P.Murphy, S. M. Murray, A.O'Brien, K. W. K. Quirke, J. A.Reynolds, M. Schacht, C. C.Stott Despoja, N. West, S. M.Woodley, J.31Abetz, E. Boswell, R. L. D.Calvert, P. H. *Campbell, I. G.Chapman, H. G. P. Colston, M. A.Coonan, H. Crane, W.Eggleston, A. Ellison, C.Ferguson, A. B. Ferris, J.Harradine, B. Heffernan, W.Herron, J. Kemp, R.Lightfoot, P. R. Macdonald, I.Macdonald, S. MacGibbon, D. J.Minchin, N. H. Newman, J. M.O'Chee, W. G. Parer, W. R.Patterson, K. C. L. Reid, M. E.Synon, K. M. Tambling, G. E. J.Tierney, J. Vanstone, A. E.Watson, J. O. W.Bishop, M. McGauran, J. J. J.Cooney, B. Brownhill, D. G. C.Gibbs, B. Hill, R. M.Lees, M. H. Payne, M. A.Neal, B. J. Knowles, S. C.Ray, R. F. Troeth, J.Sherry, N. Alston, R. K. R.* denotes teller(Senator Gibson did not vote, to compensate for the vacancy caused by the resignation of Senator Bob Collins.)Question so resolved in the negative.10000CHAIRMANThe CHAIRMAN—The question is that Greens (WA) amendment No. 11 be agreed to.Question resolved in the negative.14:24:002006Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—My sheet advises me that 250 to 253 are consequential amendments. Therefore, as we have lost 8 to 11, I will not be proceeding with them. Amendment 10A is also a consequential amendment.10000CHAIRMANThe CHAIRMAN—So you are not proceeding with that.DX5Margetts, Sen DeeSenator MARGETTS—Yes.10000CHAIRMANThe CHAIRMAN—That completes validation. We now move to RDA, which is subject No. 20.14:24:002006Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—It was, I believe, important that the chamber dealt with these issues early in the debate because of the absolute importance of the Racial Discrimination Act to the way the bill is perceived. It has been argued on a number of occasions—it has certainly been argued by the Labor Party—that we can have a really rotten bill but, as long as we slap almost any kind of Racial Discrimination Act amendment on it, it will somehow make it okay—somehow or other the High Court will make the ethical or moral decisions which this chamber seems unable to make.I do not believe that. I believe that we have the responsibility to be making legislation which stands on its own merits and which contains the political decisions which incorporate the ethical and moral arguments. However, it is the belief of the Greens (WA) that this piece of legislation is one of the most discriminatory pieces of legislation that the country has had to deal with. We are dealing with a situation which seems to hark back to a time, first of all, when the constitution was put together, when people had no idea that indigenous Australians had the right to be treated as human beings like everybody else.The National Indigenous Working Group believes that, despite the government's initial undertaking to respect the principles of the Racial Discrimination Act 1976 in drafting its amendments, many of its proposed amendments are inconsistent with the Racial Discrimination Act; that is, they extinguish or impair the native title rights of Aboriginal or Torres Strait Islander peoples while leaving intact the property rights of people of other races. That came out under Mabo No. 1 judgment.This applies particularly to validation of intermediate period acts, the confirmation of extinguishing tenures, the provisions which would allow the compulsory acquisition of coexisting native title to provide an upgrade of tenure for the pastoralists, and also to aspects of the proposed permissible future acts regime which cover primary production activities, management of water and airspace, renewals and the use of reserve land, and some provisions relating to statutory access.Inconsistency with the Racial Discrimination Act will not make these provisions invalid per se because, being a later specific enactment, the government's amendment bill will operate as an implied repeal of the Racial Discrimination Act to the extent of any inconsistency. To reverse this situation the amendment bill must contain a provision which explicitly states that the parliament's intention is that the Racial Discrimination Act is to prevail if there is an inconsistency with the Racial Discrimination Act. In effect, this means that the provisions which appear to be racially discriminatory will be valid only if the amendments are a special measure; that is, that they are of benefit.We dealt with these issues in 1997 but we were in, as we are now but perhaps even more so at the time, a pressure cooker situation. The advice we received from Professor Tony Blackshield is as follows:When the Native Title Amendment Bill was before the Senate in 1997, a number of draft amendments were proposed which might have had the effect of preserving the operation of the Racial Discrimination Act more effectively than the original s 7(1) had done.That is, section 7(1) in the act. It continues:However, the amendment which gained favour was . . . 7(1) This Act is intended to be read and construed subject to the provisions of the Racial Discrimination Act of 1975 .Rhetorically this is even more modest than the original unsuccessful version ("Nothing in this act affects. . . "). Leaving aside rhetorical impressions, the actual effect of the new version seems only to state more clearly what the High Court footnote . . . suggested as the effect of the original version: that is, as an aid to statutory interpretation, the Courts are being instructed that, in case of ambiguity in any of the provisions of the Native Title Act as amended, that interpretation should be chosen which would be more consonant with the protection extended by the RDA . In short, while this amendment might make more explicit the effect which the Court has already ascribed to the existing s 7(1), it would not add to that effect in any way.That may mean that the section already in the act might be just as, and potentially even more, effective than adding an ineffective Racial Discrimination Act amendment. The quote continues:The objective which was sought by Aboriginal negotiators in 1993—an assurance that no provisions of the Native Title Act should detract from, or operate inconsistently with, the protections extended by the RDA —may be so at odds with normal canons of statutory interpretation that no form of drafting would be effectual to achieve such an outcome. But a more ambitious version moved by Senator Margetts appeared to have more hope of success. That version would have sought added security by including relevant provisions both in the Native Title Amendment Bill and in the RDA itself. In the amendment bill, a new subclause 4(1) would provide:4(1) To avoid doubt, it is expressly declared to be the intention of the Parliament that, if any provision of the Native Title Amendment Act 1997 would in its tenor or operation be inconsistent with the provisions of the Racial Discrimination Act 1975 , the latter provision shall prevail and the former provision shall to the extent of the inconsistency be of no operative effect. [Emphasis added]This formulation is expressed to operate severally on "any provision" of the amendment bill which gives rise to an inconsistency, and the reference to "tenor or operation " directs attention beyond a mere question of statutory interpretation to an assessment of the practical effect of the relevant provision. The test of "inconsistency", and the consequences expressed to follow from it, attract the language of s 109 of the Constitution. That provision, of course, is concerned with inconsistency between a Commonwealth law and a State law and is thus not directly relevant here except by way of analogy. But the analogy is a useful one, first, because it evokes a well-established test which the courts are accustomed to applying; and, second, because it refers to a situation in which the accepted analysis is that both of the two competing laws are validly enacted, the problem then being that only one of them can operate .It should be noted that the formulation applies only to provisions of the Native Title Amendment Bill. To the extent that such a provision, if enacted, were effective in attaining its object, the overriding effect thus attributed to the RDA would avail only against the new provisions introduced by the Amendment Bill, not against the original provisions of the Native Title Act 1993 .Second, and perhaps to greater effect, Senator Margetts also proposed a complementary amendment to the RDA itself, by the insertion of a new s 6B:6B(1) To avoid any doubt, it is expressly declared to be the intention of Parliament that the provisions of this act Are to prevail over any provision of the Native Title Amendment Act 1997 which would in its tenor or operation be inconsistent with this Act.(2) Nothing in the Native Title Amendment Act 1997 is to be taken to authorise any conduct, whether legislative, executive or judicial, that is inconsistent with the provisions or operation of this Act.Again, the proposed s 6B(1) would apply to "any provision" of the Native Title Amendment Bill, so that each provision would have to be scrutinised separately to determine whether or not it was consistent with the RDA ; and in that determination the focus would be on "the tenor or operation " of each such provision. The proposed subsection (2) would ensure that the protection of the RDA availed not only against those amendments to the Native Title Act which operate by their own direct legislative force, but also to those which permit or authorise subsequent legislative or executive action which might adversely discriminate against native title holders or claimants. The inclusion of these safeguards in the RDA itself, and not merely in the Native Title Act Amendment Bill, would recognise the crucial issue is the effect to be accorded to the RDA . Moreover, the fact that the RDA provisions were cognate with, and simultaneous with, the amendments to the Native Title Act , would exclude the usual tendency to resolve such problems by giving priority to whichever enactment is later in time.I apologise for the length of my quote, but it is important that it be on the record. Professor Blackshield is indicating that we are trying to have a Racial Discrimination Act amendment which works. That at least is the tenor of what the ALP were saying at the time. They have put a lot of faith in the Racial Discrimination Act at various times and amendments relating to the Racial Discrimination Act.I will be unkind enough to remind honourable senators that in the debate on the Hindmarsh Island Bridge Bill the Racial Discrimination Act was the only saviour. That is, instead of making an ethical decision, we were left with only a Racial Discrimination Act amendment. The amendment per se did not save the bill. Even more importantly, it did not save the people, the Ngarrindjeri women. The amendment did not replace an ethical consideration.However, we are attempting to provide a Racial Discrimination Act amendment which will have some effect in preventing this act being used in a discriminatory way. I would love to have recorded the amount of times the minister and the Prime Minister have said that this bill is not discriminatory. They say, `We will argue in the High Court, but, anyway, it is good for Aboriginal people.' That being the case, they should support our amendment. There is no argument to suggest that they should not support the amendment. They themselves say that their bill is not discrimi natory. Therefore, having an amendment which actually requires that the bill not be so is the very least that we should expect. I move:(189A) Page 146 (after line 30), after Schedule 1, insert:Schedule 1A—Amendment of the Racial Discrimination Act 1975 Racial Discrimination Act 19751 After section 6AInsert:6B Operation of Native Title Amendment Act 1997(1) To avoid any doubt, it is expressly declared to be the intention of Parliament that the provisions of this Act are to prevail over any provision of the Native Title Amendment Act 1997 which would in its tenor or operation be inconsistent with this Act.(2) Nothing in the Native Title Amendment Act 1997 is to be taken to authorise any conduct, whether legislative, executive or judicial, that is inconsistent with the provisions or operation of this Act.14:37:002008Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I have the running sheet in front of me which shows amendment 189A of the Democrat-Greens (WA) amendments. It is a very good one and hopefully will be supported by the chamber. There is an opposition amendment, and I understand that there is to be an amendment from Senator Harradine. I do not have that, and it is not on the running sheet.However, I will speak to Greens (WA) amendment No 189A which is very important, although it should not be necessary in Australia in 1998 to have to move to outlaw discrimination on the grounds of someone's race. It should not be necessary but, sadly, it is. It should not be the case that in 1998 Australian citizens are required within their own country to fight for their basic human rights, for the necessities and amenities of life that this country takes for granted. But, sadly, it is necessary. I remind all senators in this chamber that Aboriginal and Torres Strait Islanders are Australian citizens. The language which is sometimes used outside this place—YE4BOSWELLSenator Boswell—Inside this place, too.HX5Woodley, Sen JohnSenator WOODLEY—And occasionally inside this place, sometimes seems to suggest that they are not. I believe that that is very sad. I do not think you would ever use that kind of language, Senator Boswell. Last Wednesday, despite the statements of Senator Minchin and the Prime Minister which were made then and since, the High Court gave this parliament some insight into the notion of legislative discrimination. It did not give us a licence to legislate for discrimination.His Honour Justice Michael Kirby gave us an insightful analysis of the generation that has preceded us—the generation of Australians who voted overwhelmingly to support the 1967 referendum to remedy a wrong that was enshrined in the chief law of this nation, the constitution. That wrong was the evil of racial discrimination—the assumption that certain human beings are treated and should be treated as inferior to the dominant racial groups of Australia. We used to call them savages. I think it behoves us neither to use the language that way nor to treat people as though they were. I said in my speech during the second reading debate that Aboriginal people would never treat the European settlers of this country as we treated them, because Aboriginal people are not savages. That is the point I want to make.The amendment being moved jointly by the Australian Democrats and Greens (WA) indicates, for us on this side of the chamber at least, that we do know how Aboriginal and Torres Strait Islander people are treated in this country at times. We would not want it for ourselves; we would not want to be treated like that. We certainly do not want our children to be treated like that, and we are not prepared to accept that kind of treatment for anyone else either. Not only should the Racial Discrimination Act apply to this legislation, it is the view of the Australian Democrats that racial discrimination should be a constitutional prohibition. The question remains: why is the coalition government of this country not prepared to make the same commitment and support this amendment?The Australian Democrats do not accept the view of our long time friend Father Frank Brennan that the RDA clause is a legal minefield. The Racial Discrimination Act is one of the few pieces of legislation in this country that one can say is based on an international concept of morality. My colleague Senator Bourne elucidated this point very well during the second reading debate. That morality dictates that all persons are created equally; that they have inalienable rights; and that they should be able to live their lives free from arbitrary interference, discrimination, vilification and violence. All honourable senators may very well agree with the sentiment I have just expressed. It would be shameful if anything else were the case.During my time in the Senate, I have always believed that this is the place to give effect to our moral convictions. The challenge, therefore, is that we should state clearly and unambiguously our position on racial discrimination against our indigenous people. It is not open to compromise. You cannot have a halfway measure; either you believe in discrimination or you do not. I put it on the record that the Australian Democrats do not believe in discrimination, and we will manifest that belief in our vote on this amendment by attempting to ensure that the principle that I have just spoken of is represented in the strongest possible terms. Last time this amendment was debated, it was moved by the Democrats, Greens and ALP and it was supported by Senator Harradine after the luncheon adjournment. Well, we don't have an adjournment here today—6H4HARRADINESenator Harradine—It was a good lunch.HX5Woodley, Sen JohnSenator WOODLEY—It was a good lunch, Senator Harradine. And I hope you have had a good lunch today; I am sure you will indicate that to us.6H4HARRADINESenator Harradine—I'll never live that down.HX5Woodley, Sen JohnSenator WOODLEY—The joint amendment moved last year read as follows:(1) To avoid doubt, it is expressly declared to be the intention of the Parliament that the provisions of the Racial Discrimination Act 1975 shall prevail over any provisions of this Native Title Amendment Bill 1997.(2) Nothing in the Native Title Amendment Act 1977 shall be taken to authorise any conduct, whether legislative, executive or judicial, that is inconsistent with the provisions or operation of the Racial Discrimination Act 1975.That is what was moved and passed last time. Now we acknowledge in the cold light of day that perhaps this RDA amendment passed last time did not necessarily achieve the result that we intended. I hope, however, that we will not water-down that amendment.The Australian Democrats believe that any detrimental racial discrimination is wrong and that, in fact, all discrimination is wrong. It is a test of our courage and moral fibre that we support this proposition. You cannot have a position where some racial discrimination is okay and other discrimination is not. The Democrats will never accept that proposition.I commend the amendment not only to the Australian Senate but to the Australian people as a signal that we move this amendment in support of the spirit and practice of reconciliation in this land, and in the fundamental belief that no person's property interests should be subject to differential treatment on the grounds of their race.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Watson)—I advise the Senate that there is also a Greens amendment in relation to the Racial Discrimination Act.14:47:002010Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I wish to clarify the situation. I have moved amendment No. 189A and we have spoken to it. There is another Greens (WA)-Democrats amendment—No. 4. They should have been moved together but No. 4 somehow has not managed to make it on to the running sheet. It was confusing for everybody because it was not on the running sheet. I now move:(4) Page 2 (after line 20), after clause 3, insert:4 Operation of the Racial Discrimination Act to prevail over this Act(1) To avoid doubt, it is expressly declared to be the intention of the Parliament that if any provision of the Native Title Amendment Act 1997 would in its tenor or operation be inconsistent with the provisions of the Racial Discrimination Act 1975, the latter provisions shall prevail and the former provision shall to the extent of the inconsistency be of no operative effect.(2) Nothing in this Act is to be taken to authorise any conduct, whether legislative, exec utive or judicial, that is inconsistent with the provisions or operation of the Racial Discrimination Act 1975 .I would also like to indicate that Senator Brown has an amendment which I think would be logical to follow should this amendment be unsuccessful. Perhaps we could discuss that when we get there.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—For the purposes of identification, that is amendment No. 1 on sheet 940?DX5Margetts, Sen DeeSenator MARGETTS—Yes, that is it. I think it would make logical sense to go from the Rolls Royce and see if we end up with the moped.14:49:002010Bolkus, Sen NickSenator BOLKUSXE4SAALP00—As we embark upon this debate again, we should not underestimate the importance of it, an importance made even more acute by the decision in the High Court this week. It is quite clear that the only outcome from the High Court this week is enormously uncertain as to whether parliament does have the power to legislate in a manner detrimental to a particular race in Australia. That High Court decision makes it important for us to take a stand. It is a real, sad reflection on Australia that neither the highest court in the country nor the government of the country is prepared to rule a very clear and distinct line against racial discrimination by way of legislation in our society.We would have thought, given the diverse nature of our society, given the need for reconciliation with indigenous Australians, given the need for us as a multicultural society to behave in a way fair and equal to all and given the way that we need to develop ourselves and how we are seen overseas, that the ultimate benchmark of our behaviour would have been that we act in a non-racially discriminate way with each other and with the rest of the world. But there is no preparedness by the government to take such a position.I think in those circumstances it is important for us to ensure that the benchmark of this legislation is provided by this particular clause. We do so not just in the interests of fairness but also in the interests of certainty. We would not be here had it not been for the Racial Discrimination Act 1975. We would not have had behind us a body of some 20 years of laws which had been developed by the courts to ensure the non-discriminatory principle can apply with respect to native title.The Koowarta case, for instance, was the precursor to Mabo. It was a case which arose in the late 1970s, where Joh Bjelke-Petersen, the then Premier of Queensland, refused to grant ministerial consent to John Koowarta and his group to purchase a pastoral lease on Cape York. The reason he gave was that Aborigines already have too much land. Isn't that an argument we have heard in recent months?The proposed purchase was a commercial transaction entered into with a willing vendor of a cattle station. Koowarta then took his complaint under the Racial Discrimination Act to the enforcement authorities. What did the then Premier of Queensland do? He issued proceedings in the High Court arguing that the Racial Discrimination Act was unconstitutional and not a valid law of the Commonwealth. In the High Court case, the act was upheld under the external affairs power and the Premier of Queensland was held liable for his refusal to approve the transfer of the pastoral lease.The act was important. As I say, it led to a lot of the argument in the Mabo No. 1 case in the High Court of Australia in 1985, a case which gave us, at the end of the day, Mabo No. 2, which gave us native title. It was a case which dealt with the law that was passed by the state of Queensland in 1985 which expressly and retrospectively abolished the rights of Torres Strait Islanders which were the subject of a pending claim in the High Court in the Mabo case. That law expressly provided that those rights were extinguished as from the moment of the extension of sovereignty of the Crown to the Torres Strait Islanders without compensation for all time and for all purposes.If that Queensland law had taken effect, the Mabo case would then have been at an end. The High Court held that section 10 of the RDA operated so as to ensure that the plaintiffs in that case could not be deprived of their property rights by such a state law, a law which was purporting to extinguish their property rights in a way in which the property rights of persons of other races were not being extinguished or impaired. That is a short history of how we are here. The RDA has been important in the development of native title. I do not think we should leave this debate, to which we could not have come without the RDA, without the RDA being protected. The important thing in this respect is to look at what we are seeking to invoke by the provisions we are talking about. What we are seeking to invoke are pretty benchmark provisions in the Race Discrimination Act as picked up from the International Covenant on Civil and Political Rights. We are talking about a provision which says that racial discrimination is to be unlawful. We are talking about a provision which provides for rights to equality before the law—section 10 of the RDA, and section 9 being the one that provides racial discrimination to be unlawful. We are talking about provisions that say it is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent, national ethnic origin and so on. I would have thought that that benchmark would have been quite critical to any civilised government's and parliament's appreciation and deliberation on issues such as this. It is to be noted that the form of section 10, the right to equality before the law, is not a form that is designed to render any law invalid, whether it be Commonwealth or state law. What it does do is to ensure that rights are conferred on persons who have been discriminated against on the grounds of race, colour or national ethnic origin. The provision ensures that they have the same rights as others. It does not confer special rights, but it does have an effect on other laws. It is important that this benchmark be somehow provided in this legislation. In that context, I think it is important for us to recognise that the RDA does allow for the concept of a special measure. To have full implementation of the RDA, we also need to ensure that the special measure capacity of the RDA is also encompassed by the provision that we have before us today.I said at the start that we need this provision for fairness, but we also need it for certainty. The likelihood of this act being found constitutionally valid will be significantly improved if the act remains a special measure, then the detrimental provisions are unlikely to be separately assessed. That is provided for in the Race Discrimination Act. It is provided for in the international covenant. That mechanism is the mechanism that the Senate decided upon after lunch the last time we deliberated on these issues. I say it again: the likelihood will be enhanced, it will be significantly improved, because of the capacity for the act to be read as a special measure. Far from creating chaos, the amendment is significantly likely to reduce the chances of the act being struck down in full or even in part, and hence it will reduce uncertainty. It is important to appreciate that the amendments will not result in all the discriminatory aspects of the act being read down in some way. If section 10 cannot operate to allow Aboriginal people to enjoy equal rights, then a detrimental aspect will be read in context and the law will survive if the court is satisfied that the package as a whole could be read as a special measure. That is an important thing to put on the record here. It is a point that was made by Senator Harradine after lunch last time and emphasised by him. It is a point that was raised in the debate on the last occasion we had this debate. For fairness, it is important; for certainty, it is important. I must say that, when we vote on this legislation this afternoon, let us keep in mind that the government has also expressed support for these principles. The government's stated policy prior to the election was to ensure that the Native Title Amendment Bill would comply with the RDA. The Prime Minister promised us that his legislation would so comply. On 5 March, in his first press conference, he said that the changes to the Native Title Act would have to be made in a way that does not violate the principles of race discrimination. In parliament he reiterated that. We do have concerns with this legislation. We have concerns with the confirmation aspect of it. We have concerns with the upgrading of rights. We have concerns with the validation of Crown granted titles at the expense of native title. We have concerns with the winding back of the freehold test and so on. It is for this reason that I will move an amendment in the same form as the one moved last time.As I say, we have had a debate on this before. The 1993 act gave birth to section 7(1), a section which was developed with indigenous people at the time. The decision of WA and the Commonwealth in 1995 has cast doubt on the application of 7(1). So it is important for us to re-emphasise our commitment and, in doing so, not just re-emphasise our commitment to fairness but also to overcome the uncertainty created by WA and the Commonwealth. Workability is an important aspect of our objectives to pursue this particular amendment. Just to summarise, our amendment to section 7 is to ensure that the principles of the RDA of 1975 and Australia's international treaty obligations under the convention on the elimination of racial discrimination are respected and observed in relation to the provisions of the act to ensure the principles of the RDA apply to the administration of all government native title regimes and as an aid to the construction of the terms of the act. It is a resubmission of 7(1), but we do have a further amendment which contains a footnote which, in many ways, is a valuable addition to the section that was passed in this place last December.The footnote acts as an aid to interpretation and it indicates that parliament's intention is that the provisions of the RDA will apply to the performance and functions and exercise of powers conferred by the Native Title Act. The important aspect, of course, is that that explicitly refers to functions and powers performed particularly by state and territory authorities. We think it is important that that be clarified by way of a footnote and we also embolden the provision of 7(1) with a footnote. With respect to the interpretation of other sections in the NTA, the note is clear that any ambiguity will be resolved in favour of the RDA—that ambiguity to which 7(1) attaches.So, in a sense, we are revisiting the debate that we had last December. There has been a lot of discussion and debate in the interim period as to the effect of the clause. On the one hand, we have Father Brennan saying that it is going to cause problems and, on the other, we have Tony Blackshield saying that it will not be effective. We believe that the formula we came upon last December will provide not just a benchmark for fairness but will also provide a mechanism for certainty, and it is one that should be supported today.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Watson)—Senator Bolkus, we presume that, following the vote in relation to the Greens' two amendments, you will then move your amendment referred to as RN42 on 941.XE4BOLKUSSenator Bolkus—That is right.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Thank you, Senator Bolkus.15:01:002013Brown, Sen BobSenator BROWNQD4TASAG00—If there is one thing that strikes fear into John Howard's heart, it is this amendment. I will tell you why: John Howard's 10-point plan is baldfaced racism and it is intended to cut the indigenous people of this country out of their rights. He says so in so many words when he comes out repeatedly, as he does, to oppose the Racial Discrimination Act having aegis over his 10-point plan. It is as plain as day that the Prime Minister is saying, `I cannot allow my 10-point plan to be put to the test because it will be found to be racially discriminatory,'—and it is.Senator Margetts has brought forward a watertight caveat on this native title legislation to make sure that no wishy-washiness is going to allow racial discrimination to seep through in the application of this act, so that it is not racially discriminatory. She has read out Professor Blackshield's opinion. It is very clear. The weak provision that got through last time, which we were told would do the job, in fact does not. If there needs to be any back-up to what Senator Margetts has said, given the clear legal opinion that that is what is required if we are to ensure this bill does not pass from this place with the taint of racial discrimination and the inherent ability to discriminate against indigenous people in this country, then we will pass that amendment.But there is a back-up which I will be bringing forward. The back-up is the very same amendment that this chamber with support from everybody—no dissent—passed in 1996 to ensure that the then social security legislation amendment bill was not discriminatory. It is in exactly the same words, and the question will have to be put—if Senator Margetts's best option does not get up—how the chamber, on that one occasion, can say, `Let's all agree to have this provision put into one piece of legislation to make sure Australians are not discriminated against,' but, when it comes to native title, can say, `We can't have it.'That will point out a duplicity and a double standard if that happens. I will be expecting those who do not intend to support Senator Margetts's amendment or my amendment to get on their feet in here to explain the double standards: why what is good for the Australian community in social security legislation to make sure we do not discriminate is not good enough when it comes to the indigenous people of this country. I can tell you why it will not be, if that is the case: it will be because we will be making a racist decision.Extraordinarily enough, the Prime Minister flagged his concern on 3AW today that the Senate does not get away with removing racism from his 10-point plan. The Prime Minister put forward a proposition that if the opposition and the minor parties vote for the bill unamended—that is, do not put in a provision to have the Racial Discrimination Act prevail:We will fully pay for the constitutional challenge against the validity of the bill.`We will fund it,' he said—half a million dollars to the Senate if it backs down on its amendments and does what he wants, and discriminates. I hope the Prime Minister on the weekend reads page 102 of Senate Standing Orders , which says:A person shall not . . . offer or promise . . . any inducement or benefit of any kind, or by other improper means, influence a senator in the senator's conduct— The Prime Minister can go one better than influencing a senator; he can influence the whole Senate—he can move to buy off the Senate—in his attempt to ensure that we give the stamp of approval to racial discrimination in this legislation. How low can you go? What a standard for the Prime Minister of this country to set! He should be sent to the privileges committee for an assessment of his behaviour, and if he had specifically named somebody as the target of his inducement he would be going, I can assure you. But, of course, he is in the position to try every manoeuvre he can to buy off the opposition—Senator Harradine, Senator Colston, the Democrats and the Greens. He has said a new low standard in trying to do just that. He has had to go public in his efforts to influence the Senate into siding with him in discriminating against the indigenous people of this country. We, for one, in this little corner of the house are not going to have a bar of it.If the Prime Minister is going to be fair and not discriminate, he will fund anybody's application to the High Court—regardless of what comes out of this place—when they go to challenge this legislation afterwards. Don't put a caveat on it, John Howard. Don't say, `If you don't fiddle with my bill, if you don't make it non-discriminatory, I will fund a challenge to the High Court.' The Prime Minister has made that promise. Let him promise it to anybody who wants to take it to the High Court. I can assure him that the indigenous people will be taking up that promise if he cares to extend it to them. But I suppose he will not, because he has two standards: one for the indigenous people of this country and one for the rest of us. That is what this piece of legislation is about.There it is. We have to make sure that in this important part of committee deliberation we do not allow loopholes and that we back the amendment brought forward by Senator Margetts to insist that the indigenous people of this country have the protection of the Racial Discrimination Act in the application of this so-called 10-point plan—this 10-point plunder—of the Prime Minister's when legislation gets through this place in one form or another.The test is on Senator Harradine and the Labor Party very much here. As I say, if they do not want to support Senator Margetts's Rolls Royce, as she calls it, legislation, if they want to have the Minimoke alternative, let them please stand up and say why. If you go down to the next level of strength of application of non-discrimination, for goodness sake get up and say how on social security legislation applying to all Australians you can put in an amendment and then fail to now support exactly the same amendment regarding the indigenous people of this country.The Senate here is on trial. We will all get up and say, `There is nothing more repugnant than discrimination against anybody, let alone the original Australians', but history will record this as a clear-minded act of discrimination against those very people, the indigenes of this country, if we fail to support this amendment that Senator Margetts has put forward.15:10:002014Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—When Senator Bolkus responded to the Greens-Democrat proposal for a workable Racial Discrimination Act amendment, he did it by revisiting what we now refer to as the compromise Racial Discrimination Act amendment of 1987. I listened quite carefully to Senator Bolkus's response today, and the question that occurred to me was to ask myself: who was Senator Bolkus directing his arguments to; who was he trying to convince? I believe that the arguments in relation to this amendment probably change depending on who the audience is. I guess that if Senator Bolkus or other people were talking to a group of indigenous people they would say, `Look, no matter what happens in the bill, there is an RDA amendment. And that will be okay. That will enable the worst aspects of the bill to be challenged in the High Court.'Yet, as I say, I listened carefully to the argument, and I could not see that Senator Bolkus was arguing cogently that the Racial Discrimination amendment would in fact enable Australia to meet its treaty obligations. What I did read was that only when there was some doubt about the wording of the bill would there be any challenge. In fact, Senator Bolkus was trying very hard, I believe, to argue about the `workability' of the compromise `compromise' amendment.I believe that Senator Bolkus was trying his best to argue—and he did, I believe, argue quite well—that the amendment which was passed last year has almost no effect. I believe him in that instance. I do not see why the government is not convinced. I think they are. I think there is a lot of bluff and bluster here, because they probably realise this for themselves and they have just as many legal opinions. It might be that there might be some skerrick of some aspects of the bill which do not escape, but in fact the compromise `compromise' amendment—the one we were pushed to support in the heat of the moment if you like, at the end of 1997—does not do the job. I think that is exactly what Senator Bolkus was saying. To a certain extent, it is what Senator Harradine's legal advice is saying, and it is the same advice, to a large extent, that Professor Blackshield is giving. So we are not here not knowing what is going on; we are here knowing what kind of decision we are making.15:13:002015Bolkus, Sen NickSenator BOLKUSXE4SAALP00—Probably in the spirit of the day, can I say that I have been called lots of things in this place and rarely have I taken offence at them. But if anyone is going to insinuate that I am not being genuine about race discrimination, I do take offence at that, Senator Margetts. I ask you to look at my record—and not just my record in parliament, because one of the major reasons I got involved in politics was in regard to race discrimination. I argued and fought battles as a lawyer before being in politics, and I have fought on this principle ever since. I suggest that you look at my record of opposition to race discrimination.The amendment that we moved last time and move this time is basically one that gives full impact to the operation of the RDA. The RDA itself allows for accommodation for special measure packages and, to the extent that anyone does not implement that aspect of the RDA provisions, then they are not implementing the full RDA. It is for that reason that I argued that the special measure provision has an important role in the assessment of this legislation but it also has an important role if we were to honestly and broadly implement the provisions of the Racial Discrimination Act. Senator Margetts, as I say, it has been the spirit of the day—I seem to be fair game for the debate and I will probably continue to be until we finish some time next week or next month or whatever. I just repeat that what we did last time was pretty powerful and important, and I think it is pretty important that we do it again.15:14:002015Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I am aware of the fact that members of any major party here are required to play a role.XE4BOLKUSSenator Bolkus—That is even more offensive. You'll get yourself in even more trouble.DX5Margetts, Sen DeeSenator MARGETTS—Fine. I am happy for Senator Bolkus to take responsibility for what he did and what his party did during the Hindmarsh Island debate in relation to the Racial Discrimination Act. I was trying to be generous and suggest that sometimes decisions are made by other people in other ways and one is required to carry them. The question I was simply asking, and I was attempting not to be as offensive as I might have been, was: to which audience were you directing your arguments here. My decision was that you were specifically directing them to those people who you thought might want to change their vote, to convince the government and Senator Harradine that these amendments in fact do not make much difference, that is, that they are mainly geared to increasing the `workability' but that they do not actually have much teeth or do not carry any specific guarantees in relation to the bill per se in the High Court. That is what I was saying. You can bluff and bluster as much as you like, but that is simply what I was saying. It was not intended as a personal affront. It may have sounded like it, but basically I was saying that the role you were playing and the audience to whom you are playing in this particular area I believe is not indigenous Australia.15:16:002015Brown, Sen BobSenator BROWNQD4TASAG00—Senator Margetts has, I think, knocked Senator Bolkus temporarily out of his seat, so I will ask a question of a couple of members opposite, if I may—they are talking to each other at the moment but I might attract their attention. They are the Minister for Aboriginal Affairs, Senator Herron, and the Special Minister of State, Senator Minchin, who has carriage of this legislation. Today the Prime Minister did make an offer to the Senate to fund a challenge to the High Court if this legislation were to be put through without amendment. What I would like to know from the government is whether that offer stands if the legislation is amended so that it is made non-racially discriminatory. Does it inherently mean that the government is going to fund a challenge to the High Court by the indigenous people which follows the passage of this legislation through the parliament?15:17:002016Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—The government has stated, both in my terms and the Prime Minister's terms, the view that, if the opposition parties are so convinced of their view that there is anything unconstitutional about the bill, they should allow the bill to pass in the form presented to this chamber by the government and have it challenged in the High Court. What the Prime Minister has said today is not an offer to the Senate but a commitment that, if the bill is passed in the form presented to the parliament by the government, then, on the presumption that it will indeed be challenged, which many Aboriginal leaders have said they will do, the government has made a commitment that it is prepared to fund such a challenge in order to ensure that the High Court can act as the arbiter as to whether or not this bill does infringe any provisions of the constitution.It is a quite sensible and proper course of action, one which I would have thought those who seem sure that there is something constitutionally doubtful about this and who do not which wish to see Australia have a double dissolution election over this legislation would find attractive. That is all. It is a policy position adopted on the basis of an assumption that the other parties do seem to think that there is something constitutionally wrong. We do not. But, if you think that, let the High Court be the arbiter.15:19:002016Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—The problem, Minister, with that proposition is that it is absolutely contradictory. The reason why we are here in this chamber today debating this legislation is that your government did not accept the High Court decision in Wik. So we are now here debating the Wik 10-point plan as your government's response to that High Court decision, which we would claim in fact contradicts that High Court decision. I know you disagree with that. The reason why we could never accept the Prime Minister's offer is that it is contradictory. If he will not accept the decision of the High Court in Wik and seeks by his 10-point plan to water it down considerably, what is the point of being here debating this legislation this afternoon, if in fact he is now somehow or other saying, `Well, let's try the High Court again'?Aboriginal people are not footballs to be kicked from one High Court decision to another. They are not. We are here as legislators to try to produce for this country the best legislation we can. This gimmick that the Prime Minister has come up with is rejected out of hand. It is contradictory and it also is simply a gimmick. I am sorry, Minister, but even trying to put it in the best light does not convince me.15:20:002016Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I just want to quickly response respond to that. It is frustrating to conduct this debate on such mythical premises. The statement that the government does not accept the Wik High Court decision is quite extraordinary in the light of the obvious fact that on our side of politics there was a debate about whether or not to accept the Wik High Court decision, with the farming industry of Australia saying, `The government should give us what Paul Keating promised, that is, what we all thought we had: exclusive possession on pastoral leases.'This whole bill is premised on the basis that the government made a clear decision that it was not going to do that, that it was not going to except the Keating government decision; it was going to accept the Wik High Court decision. In fact, as has been stated repeatedly, the legislation gives more protection to native title than does the common law. As a matter of common law, the High Court in the Wik decision said that native title is not necessarily extinguished by a pastoral lease. It may well be; you have to look at the lease and the legislation under which it was granted to see if any native title has survived. But, of course, the High Court said as a matter of common law that sovereign parliaments have the authority to completely extinguish native title by issuing contrary grants.This act says no, that native title is recognised on pastoral leases and provides huge constraints on what would otherwise be the freedom of state parliaments as observed by the High Court. I do not mind debating all of this but let us debate it on the facts and not some nonsensical suggestion that we do not accept the Wik High Court decision. Remember, that was a decision about the common law. We are talking about the proposition put by some that the Native Title Amendment Bill 1997 breaches the races power of the constitution. Aboriginal leaders have said that they will challenge this legislation as being in breach of this races power. We are saying that we do not think it does because it is beneficial but if you wish to have it tested, pass it and let the High Court decide.15:23:002017Brown, Sen BobSenator BROWNQD4TASAG00—What has happened to the `bucketfuls of extinguishment' that the Deputy Prime Minister described this legislation as entailing? That seems to be totally at odds with what you have just said, Minister. And what has happened to the rights of indigenous people to expect that, cattle grazing notwithstanding, they would be able to move and camp and hunt on their traditional grounds? What is happening in this legislation—we will be getting to it on Monday or Tuesday—is that all other rights are going to be given to developers and taken away from the indigenous people. Developments of any sort you like to name almost, which are going to change the whole face of Australia, are going to be given the nod because of this legislation—not the Wik determination—and the indigenous people are going to have no negotiating rights.But I want to come back to the Prime Minister's very generous offer this morning to fund a full High Court determination of the validity of this legislation. The minister, Senator Minchin, has said, `That will be done for the indigenous people only if we don't amend the legislation.' I want to clear this up. Is the government saying that it will fund a challenge from the indigenous people of Australia provided the Senate does not amend the legislation? If it comes to that, is the Prime Minister asking senators on this side to go and meet with the indigenous people and say, `Please, let us drop all the amendments?' I cannot read it any other way. Either the Prime Minister is going to fund a challenge from the indigenous people regardless of what this Senate does or he is asking for us to influence the indigenous people or vice versa to retract amendments put before this place. That is an inducement if I ever saw one. It is improper conduct. The Prime Minister ought to be ashamed of himself. He is trying to coerce or induce senators and the indigenous people to fall back into line with this racially discriminatory legislation.All I need to hear, and I am sure all the indigenous people of this country, moreover, want to hear, is that the Prime Minister is true to his offer to them regardless of what happens in this place. Otherwise you are putting them on the rack. You are saying to the indigenous people, `We will fund a piece of legislation but if those people in the Senate put amendments in our legislation we will not. You are going to have to pay for it yourselves.' Where is the justice in that? I would say that, inherently, is discriminatory in itself.VW4HERRONSenator Herron—We'll be paying for it anyway, through ATSIC.QD4Brown, Sen BobSenator BROWN—There you go: `We'll be paying for it anyway, through ATSIC.' Take the money from somewhere else. Take the money from all the other things that the Minister for Aboriginal and Torres Strait Islander Affairs says are priority and put it into a High Court challenge. The Prime Minister today has said that he will fund a challenge in the High Court by the indigenous people.VW4HERRONSenator Herron—It won't be out of ATSIC.QD4Brown, Sen BobSenator BROWN—And it won't be out of ATSIC, as the minister says. Well, let him drop the conditions. He is skirting with discrimination right at the outset because he is saying to the indigenous people, `You withdraw your wish through the oppositional parties—the Democrats, the Greens, the Labor Party, Senator Harradine—to improve your lot or we won't give you the money.' What sort of behaviour is that from our nation's leader? Pretty low. The Prime Minister ought to have thought about what he was doing before he went on 3AW. But I do not think he has the capacity to. It is an inherently duplicitous form of delivery of his policies in this country. There is one set of principles for the indigenous people and another set for the others.It would help the matter and make the Prime Minister's position defensible if the minister got up and said, `It does not matter what the Senate is going to do; the Prime Minister's offer to the indigenous people stands.'15:28:002018Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—Senator Brown is, regrettably, revealing his extraordinary ignorance of the constitutional structure of the country and the role of the High Court. The High Court can only adjudicate on laws passed by the parliament as to whether they have been passed in accordance with the constitution. It cannot adjudicate on bills. The House of Representatives, through the government, has made it clear that it will not pass into law a bill which contains amendments unacceptable to the House of Representatives, where the government is formed and which represents the people of Australia. Therefore, ipso facto, a bill passed by this house which contains amendments unacceptable to the House of Representatives will not become law. It cannot therefore go to the High Court to be adjudicated upon. The only thing that can be adjudicated upon is a bill which becomes law as a result of the House of Representatives passing that bill, and the House of Representatives will only pass a bill that contains amendments that are acceptable to the House of Representatives. Having become law it can then be challenged before the High Court and we have said that in those circumstances we will fund a challenge. There is nothing inconsistent or improper about the Prime Minister's position.15:29:002018Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I really am at a loss to understand the claim that the minister makes constantly that the Wik 10-point plan is beneficial to Aboriginal people. So I ask this question of him: Minister, if the Wik 10-point plan is beneficial to Aboriginal people, why are they so offended by it? Could you give me some idea of why Aboriginal people have been so opposed to your Wik 10-point plan if it is beneficial?It seems to me that there is a tremendous gap there that you do not seem to be able to bridge, but perhaps you might try in answering my question. Can you give me some idea of why Aboriginal people have been so opposed to the Wik 10-point plan if, as you say, it is beneficial to them?15:30:002018Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—We are in the committee stage, discussing the question of amendments relating to the Racial Discrimination Act. If we now get into polemical discussions of this sort, I think we really will be here after Easter.But we do maintain the view very strongly that the Native Title Act, as amended by this bill, will remain legislation of benefit to Aboriginal people. We do believe that it is of benefit but, of course, it does not meet all the demands of some Aboriginal spokespersons. That does not, by definition, mean that it is not beneficial.Governments, as the Labor Party will know—but the Democrats never will—are always faced with the situation of not being able to meet the demands of every group in the community. We have not been able to meet the demands of the farming community in relation to this bill, nor have we been able to meet the demands of the mining industry— and, it is true, we have not been able to meet the demands made upon us by some Aboriginal spokespersons. But it does not follow from that that the bill is not beneficial.15:32:002019Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Mr Chair, I do not want to delay the vote, and I would like to see some vote on this issue before we break for the weekend. But the minister made some comments in relation to sovereign parliaments.I believe that the minister is not in a position to talk about sovereign parliaments in relation to the right of this parliament to make laws in relation to Aboriginal land. I believe that still has not been decided and, in recent times, the High Court have never ruled on that. Someone suggested to me the other day that it would be very difficult, if not impossible, for the High Court to make a decision on sovereignty because they would probably then have to say, `Therefore we no longer exist and, therefore, this structure no longer exists.'However, the reality is that there has been no treaty with indigenous Australians. It was talked about a few years ago; the Labor Party talked about it a few years ago. I would suggest that the minister avoid using terms like `sovereign parliaments' because, in fact, under international law, it could and has been argued that the Australian government does not have sovereignty over indigenous people and indigenous land.The minister mentions that we will be paying for it out of ATSIC. In fact, ATSIC will be paying for it out of ATSIC. As we all know, the minister and the government do not have the power to direct ATSIC as to how it spends its funds. What it would mean is that ATSIC would have to find the funds from somewhere. Unless the government gave it an increase in appropriation, I guess that something else would have to miss out, as it often does in the necessity so often for ATSIC to be able to fight for its basic legal rights.Also, I would offer quickly that, if the government truly wants certainty in the constitution, what we do have to have is constitutional change. With the race power in the constitution, and the amendments to the race power in the constitution, it is my belief that the people of Australia did not mean that we or governments should or could use it to the detriment of a race of people. It seems to me that we are going to have this argument again and again in this place, until we put it to the Australian people that there be a change to the constitution to make it beyond doubt that the race power is there for the benefit of any race of people.15:34:002019Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I just indicate for the record that the government opposes the amendments moved by the other parties on this issue for the reasons stated the last time we debated and stated publicly time and again. The government accepts the position adopted by the Keating Labor government with regard to the appropriate relationship between the Native Title Act and the Racial Discrimination Act—and that is section 7(1) in the existing act, that `Nothing in this act affects the operation of the Racial Discrimination Act 1975.'As I have said repeatedly, the Keating Labor government considered this question at length. The committee of Labor members, dominated by Senators Cooney and McKiernan, came to the view that anything other than this particular prescription was a recipe for legal chaos and endless litigation. That position has been most eloquently put in the public arena by Father Frank Brennan. Former Senator Bob Collins indicated publicly last week his support for that position.We do not impugn the motives of either Senator Bolkus or anyone else on this issue of racial discrimination, and nor should you ours. Every member of the coalition has a fundamental commitment to ensuring the elimination of racial discrimination in this country.But we are dealing with a piece of legislation which affects the land management and the laws relating to property over 79 per cent of Australia. It is a novel development in the history of Australia that a federal law of this kind should have such sweeping effect where virtually everything done on 79 per cent of Australia must comply with that act, otherwise it is potentially rendered invalid.We believe that all the appropriate sanctions should be built into the Native Title Act itself—and we believe they are. To then subject that act to another act to produce what we have previously described as the double jeopardy effect and the uncertainty when you are discussing investments of billions and billions of dollars and jobs and livelihoods, the potential legal consequences are—as Father Brennan and the Keating Labor government itself indicated—unacceptable to any responsible government and cannot be accepted. We do think the provision, as set out in the Native Title Act currently, is the appropriate provision and that is the one we support. Question put: That the amendments (Senator Margetts's and Senator Woodley's ) be agreed to.15:42:00The committee divided. (The Chairman—Senator S. M. West)8Allison, L. Bartlett, A. J. J.Bourne, V. *Brown, B.Margetts, D. Murray, A.Stott Despoja, N. Woodley, J.44Abetz, E. Bolkus, N.Boswell, R. L. D. Calvert, P. H.Campbell, G. Carr, K.Collins, J. M. A. Colston, M. A.Coonan, H. Crane, W.Crowley, R. A. Denman, K. J.Eggleston, A. Ellison, C.Evans, C. V. *Ferguson, A. B.Ferris, J. Forshaw, M. G.Harradine, B. Herron, J.Hogg, J. Kemp, R.Lundy, K. Macdonald, S.MacGibbon, D. J. Mackay, S.McKiernan, J. P. Minchin, N. H.Murphy, S. M. O'Brien, K. W. K.O'Chee, W. G. Parer, W. R.Patterson, K. C. L. Quirke, J. A.Reid, M. E. Reynolds, M.Schacht, C. C. Sherry, N.Synon, K. M. Tambling, G. E. J.Tierney, J. Vanstone, A. E.Watson, J. O. W. West, S. M.Question so resolved in the negative.Progress reported.Adjournment202010000PRESIDENTThe PRESIDENT—Order! It being 3.45 p.m., I propose the question:That the Senate do now adjourn.202015:45:002020Reynolds, Sen MargaretSenator REYNOLDSXI4QLDALP00—I want to take this opportunity to table a report that details activities undertaken by me as parliamentary adviser to the Australian delegation to the 52nd General Assembly of the United Nations.Leave granted.XI4Reynolds, Sen MargaretSenator REYNOLDS—I would like to start by thanking the citizens of Australia for giving me this quite unique opportunity to be part of the delegation at the United Nations last year. It is not an opportunity that comes to all parliamentarians. Only two parliamentarians each year have this very special opportunity. It was quite unique and it was a privilege to have been able to participate in the work of the Australian mission in New York and to have been brought into the work of the United Nations from the end of September-October to December.I want to detail some of the recommendations that I have made as a result of my experience at the United Nations. My report covers recommendations; the role of a parliamentary adviser; the key issues of the 52nd General Assembly, which for me were UN reform, Iraq, the third committee and the sixth committee; conferences and meetings; Australia's human rights policy; women's rights; and follow-up projects for 1998. In attending so many sessions and in observing the work of the mission, I found that it was possible, when I came back, to review and assess those areas where I thought in future we could build on Senator Patterson's and my experience and indeed on the experience of those members of parliament who have been attending the General Assembly since the mid-1960s.First of all, it is a practice that should continue. It is a wonderful opportunity for this parliament to be kept in touch with the work of the United Nations. But there are areas where we could perhaps update and change some of the practices that would better benefit and assist Australia in terms of how we are perceived within the United Nations itself. I would like to read my recommendations, or as many of them as I can with this opportunity. First of all, in relation to the role of parliamentary advisers to the Australian mission to the United Nations, I state:The role of parliamentary advisers needs to be more clearly defined to maximise personal professional development, the opportunity to provide practical support to the Australian Mission and an ongoing commitment to the work of the United Nations.I think that ongoing commitment is very important. I also state:The Department of Foreign Affairs and Trade should consider developing a set of guidelines, including practical administrative arrangements, to assist parliamentary advisers prepare for this transfer of duty.The issue of electorate staff being able to travel at private expense to be involved in the work of the delegation should be fully considered and officially clarified to assist the work of future parliamentary advisers.When you are participating in this delegation, you have to do both your work from Australia and your work from the United Nations. I did not have any staff with me. But I commend my colleague Senator Patterson, who made special arrangements and assisted with the funding of electorate staff. I think that is highly commendable. It did enable her, I am sure, to better keep across some of her responsibilities than in my case, where I always seemed to be rushing to complete work that had to be done to send back to Australia. In relation to the Australian mission to the United Nations—as you would understand, Madam President, this is a perennial recommendation—I state:The staffing and resource levels of the Australian Mission should be increased to maximise the participation of Australia in all areas of the United Nations. I commend the role of the ambassador, our first woman ambassador, Penny Wensley, who is absolutely dedicated. She has so much energy that it is very hard to keep up with her in all that she does at the United Nations—not just with being involved in committees and the General Assembly, but also in discussing issues with all her colleagues. But there were times when I wished she had more resources, including staffing, to keep that momentum going. It is always a difficulty whenever resources are mentioned. All governments have good reasons for not funding at certain levels. But I do think it is an issue that should always be being reviewed. The United Nations is where Australia is showcasing its view of the world in so many areas, and we need the resources and the staffing to do that for maximum benefit.I have also raised an issue that I think is perhaps the only controversial issue in my recommendations, and I want to explain it. I have said:There could be greater appreciation of the professionalism of overseas-based Australian officers involved in day-to-day negotiations, thus limiting some of the protracted New York-Canberra-New York communication, which can be both inefficient and out of step with the climate of opinion within the United Nations.I want to emphasise that I am not referring to the foreign minister here, because obviously the foreign minister has the absolute right, indeed responsibility, to be in touch on a daily basis. But at the bureaucratic level I did get the impression at times that there was a little too much dabbling from Canberra. Where we were in New York the staff were fully across the issues, fully across the nuances of the debate, and it was very time consuming to have phone calls, faxes and e-mails disrupting the flow of debate and negotiations. I am not a professional in terms of the officer level, but I did feel that we need to ensure that there is a good brief—which there is—of the broad issues and the general line of government policy and then leave it to the professionals and of course the minister's office.In the few minutes remaining I want to run through the last item—though there are a few more recommendations: Australia's role at the United Nations. I think we need to develop:. . . a forward plan of those priority areas where the Australian Government can take a leadership role and offer relevant expertise.I think that we could be doing more in that area. I think priority should be given to developing a register of suitable candidates for nomination to be available for appointment to various United Nations committees, particularly giving attention to women and men from a variety of professional backgrounds with community based experience. Finally:The Australian Government should develop a comprehensive strategy to raise the profile of Australia within the United Nations building to include art exhibitions, a food and wine festival, cultural performances, Australian craft availability—in the gift shop, for instance, there was nothing from Australia—. . . Such a strategy should ideally culminate in special 1999 events to preview Australia prior to the Olympic Games.In conclusion, could I again praise Ambassador Penny Wensley and her staff for the role they fulfil. It was a unique opportunity. Senator Patterson and I are very grateful to have been the lucky ones selected on this occasion.202215:55:002022McKiernan, Sen JamesSenator McKIERNAN1I4WAALP00—I have in the past stood in this place and been critical of an adversary of mine, one Mr Richard Egan from Western Australia. That criticism arose because of the position he adopted on illegal entrants to this country, boat people in particular—people who had been confined in perhaps Port Hedland and other places. We have had our differences on that particular subject matter over a number of years.Today, however, I have to get up and thank Mr Egan because of his actions and those of the people that he represents which were reported on pages 4 and 5 of yesterday's West Australian under the headline `Extremists cost us votes: pro-life MPs'. To explain that headline one has to go to the article under the headline `Abortion on demand' in today's West Australian. It talks about the Western Australian parliament yesterday and the previous day passing bills in both houses—legislation which will give Western Australia, as is reported in the newspaper:. . . the nation's most liberal abortion laws—giving women access to abortion on demand—after two historic votes in State Parliament yesterday.After sitting all night, the Legislative Council voted 22 to 11 about 5.30am to repeal the criminal law on abortion.About 10.35am, after an exhausting debate in a sitting lasting nearly 24 hours, the Legislative Assembly voted 31 to 19 to pass the Government-sponsored abortion reform Bill to make abortion legal when a woman gives informed consent.For many years I have been a supporter of a woman's right to choose. My name appeared in an advertisement in Tuesday's West Australian supporting that position. I was not hiding behind any bushel, and I do believe, although I have not checked—the chair of the Senators' Interests Committee will probably be able to check this for me—that I have declared I am a member of an organisation that calls for abortion to be freely available to women who want it. Thanks to the antics of Mr Egan and his organisation, women in Western Australia should now be able to control their own bodies and their own lives in future.It has been an exhausting debate for my parliamentary colleagues in the west. As the newspaper says, the debate raged in both houses simultaneously. This debate has gone on at a very intense pitch and pace—perhaps as intense as the euthanasia debate which we were involved in in this place last year. The hours that people have put in have been extremely long. The list of who voted for what in the votes are displayed on the front page, and it is rather surprising to see where the support for the right to choose came from.The heartening thing about the overall result, irrespective of whatever moral positions individuals take on this issue—I know there are divergent views—is reflected in the headline of the editorial in today's newspaper which states, `MPs' vote reflects majority will'. It is a real bonus to the electorate of Western Australia that their elected parliamen tarians will take decisions that cross party boundaries and reflect the will of the people.It has been indicated in public opinion polls that some 80 per cent of the population of Western Australia support either or both, or a mixture, of the bills that are going through the Western Australian parliament. If that is the case, it is not truly reflective of the vote in the parliament, but it is a darned sight more reflective than the vote in this place on the euthanasia bill, which we debated last year and which was carried. We in this chamber last year did not choose to reflect the will of the people on that issue.Before leaving this issue, I want to say a few words about the antics of Mr Egan. I agree with him on one point: his criticism of the former Governor-General—although I do not necessarily share the views and criticisms on that particular issue. It just goes to show that, no matter how different you are, you can always be somewhat the same.Some of Mr Egan's supporters call him an Ayatollah, fanatic or zealot. Perhaps now—although I have not done so in the past—I will seek to join them. Truly, some of the antics that these people got up to on this occasion have to be condemned. I am surprised that Archbishop Hickey, the Archbishop of Perth, has not come out and distanced himself from Mr Egan. I had expected Barry Hickey to distance himself after seeing Mr Egan following a group of women through the streets of Perth and abusing them in such a manner that it could have been seen to be physical abuse, not just verbal. Unfortunately, Archbishop Hickey did not do that. His Grace also joined one of the main speakers in the pro-life rally in Perth on Tuesday of last week.That reflects poorly on the archbishop. These people had used stolen information about a group of 24 women who had had abortions and they publicised that information. That has been universally condemned. It is alleged that even people who supported the pro-life cause in the state parliament have been influenced by antics such as that. It may have influenced their vote. If so, I am very pleased that that is the case; Mr Egan and his group have served society well by their extremism because they may have given Western Australia the most liberal abortion laws in the country.I will mention some of the other things that the group has done apart from the files that they released. On Tuesday—the same time as the advert I spoke of earlier—they published their own front-page advertisement to promote their cause. That advertisement, which I deliberately have not taken a copy of to show to the chamber, included a photograph of the Premier of Western Australia, the Premier's wife and their child. They put that photograph in the newspaper without the permission of the Premier, his wife or his child.We have some debates in this place and in the other place about family members of politicians, but I suggest that this is one of the instances where people really do have to look at the ethics of the causes that they promote. I doubt very much that they, or indeed anybody seeking to influence Mr Court, will seek to use his and his family's photograph in this way in the future. We know from statements that Mr Court has made to the newspapers that he, his family and his wife were very upset about the manner in which they used it.The other thing that the group did, which again featured by way of an article on the front page of the West Australian newspaper, was supposedly show bloodied tools and gloves which were alleged to have been used in abortions. Again, tactics such as this turned off more people than they switched on to this issue. I do not have a problem with honest debate on things, as was proved in the euthanasia debate, which was quite divisive. I think I represented the majority view in the community. Unfortunately, the parliament, the Senate more properly, did not think the same way. But I do not think that any side of the parliament got down to the graceful and disgusting tactics that Mr Egan and his ilk got down to on this. If they are hurting because of the articles on the front page of the West Australian newspaper today, so be it. I am actually quite pleased that that be the case.202416:05:002024Carr, Sen KimSenator CARRAW5VICALP00—Earlier this week I gave notice of a motion in the Senate concerning the failure of the government in regard to its responses to the Senate's Employment, Education and Training Committee—namely, the failure to respond to questions on notice and the failure to respond to committee reports, committee reports for which I note that, in the normal scheme of things, one could reasonably expect responses within a three-month period. There are three committee reports: Childhood matters: report on the inquiry into early childhood education , which was presented in July 1996; Beyond Cinderella , presented in April 1997; and Not a level playing field , presented in June 1997. I also drew attention to the fact that some 154 questions on notice will have remained unanswered at the appointed day for the return of questions to estimates.I would like to draw to the Senate's attention this evening that, as of 12.30 p.m. today, some 41 questions still remain unanswered. It strikes me that this is a disappointing response from a department. It strikes me that this reflects a deeper problem within the department. It strikes me that this reflects a deeper problem within government; that is, the failure of the Minister for Schools, Vocational Education and Training, who has direct responsibility to this chamber for this portfolio. It reflects however a deeper problem that occurs as a result of this government's approach to education, and I have put the view in previous contributions to the chamber that this government is running down the Department of Employment, Education, Training and Youth Affairs to the point from where it was once a great department of state to its being a shadow of its former self.The situation is that some two years ago the department had some 16,000 employees, but I understand from responses to answers given to me by the secretary, and confirmed in one of the answers that was received, that the department levels in the coming financial year will be down to 2,500. So that is from 16,000 to 2,500 in a little over two years: a dramatic decline, I would have thought, in anyone's language.On top of that, we have a situation where the department is relying increasingly upon consultancies and what I regard are euphemistically termed service contractors. This difficulty is further reflected in the fact that the department cannot answer questions in the absolute, in the cases that I have mentioned, and, where they do, it is all too often the case that answers are given inaccurately. On simple propositions, for example, you ask a question of the department officials, `Give the figures in real terms,' and they give the answer back to you in out-turn prices. Simple propositions like that are of profound political importance in terms of the measurement of budgetary figures, and this is one example that occurred. But we have a much broader problem as a result of what I see as the gutting of the department itself. The secretary of the department, Mr Sedgwick, on 25 March circulated to all staff a minute entitled `DEETYA Resourcing'. It said:When launching the Corporate Plan in December, I noted that"The Department will always find ourselves needing to change, refocus, re-engineer and respond to [a] rapidly changing world. We will, therefore, continually look at what we are doing and how we do it. And it will lead to changes from time to time.He goes on to point out that the government has provided resourcing that was `"zero based" to reflect the scale of operation required' once the various networks and other functions have closed. He says:The time has now come for us to make some adjustments to our operation to reflect our ongoing resourcing and priorities.He indicates about the department:. . . will employ a little over 2,500 staff in 1998-99. This will require us to release or redeploy approximately 150 people from our current National Office payroll.He says:I have asked Division Heads to give me preliminary plans on how their Divisions can reach the numbers of positions available and allocated to them in line with our corporate priorities.And so it goes. He indicates that:The particular process to be followed in giving effect to the necessary reprioritisation of our activities will be determined at local level, in consultation with those affected. As usual, there is a range of options available. Depending on the circumstances, this means some temporary positions will cease, some vacancies will not be filled and some staff will be transferred to other functions.He goes on:Our aim, however, is to reach decisions on the way forward as quickly as possible so as to minimise uncertainty and dislocation.Quite clearly this is desperately needed in this department. It is needed not just for the employees who have to face these very difficult decisions in terms of their personal futures, but it is desperately needed in terms of the people that this department serves: the five million students, the hundreds of thousands of unemployed persons, the various employer bodies, the various TAFE colleges and the various educational institutions of this country.I put it to the Senate that this department is not able to fulfil its core functions adequately with this level of resourcing. It strikes me that this is a very serious problem which is reflected in the fact that this parliament can no longer get the service that it has a right to expect from a department on very simple measures like the answering of questions. It corresponds to a government attitude whereby it cannot respond adequately to committee reports.But there is a further difficulty in the way in which this government approaches education. The minister earlier this week introduced to the parliament on a non-controversial basis a bill which highlighted matters relating to the indigenous education initiatives. The minister's claim in a press release that he is making per capita funding, under the target outcomes project for indigenous students, available to all students, not just those in larger schools, clearly implies that this was a matter of his own initiative.The fact is that the government was forced into this position by the opposition. These were points I clearly made in the debate on this bill this week. Without the ALP's pressure, the government would not have even used the powers provided to it by its own legislation to provide the funding to indigenous students. It would have denied around 1,000 Aboriginal children access to funding which was payable under existing legislation. It was the opposition that forced the government to take this position.What we see in the minister's press release is a different proposition being advanced. We do not mind that the bill is called non-controversial; we do not mind the minister now turning around and taking the credit. But we do believe that it is a very cheap trick for this government to seek to milk cheap publicity from what is a very serious issue and from the solution which was found as a result of the political process.This is a press release worthy of Dr Kemp. I would have thought that Senator Ellison was a better minister than that. I would have thought that he would not have to rely on the Dr Goebbels techniques that we have seen demonstrated all too often by Dr Kemp.Dr Kemp indicated this week that there would be no cuts to education funding this year and that somehow or other more places were being provided by this government than they were under the previous government, implying that there had been no reductions. The minister's higher education budget statement, for instance, says:A further reduction of 3 per cent (a cumulative total of 4 per cent) on funding previously announced for 1998 will be a major efficiency dividend sought from this sector.We notice from the statements in the estimates that there was a cumulative effect of 21,000 fewer places being provided under this government than previously would have been provided under Labor. This situation is quite contrary to the position that is being advanced by the government. (Time expired)202516:16:002025Herron, Sen JohnSenator HERRONVW4QLDLPAboriginal and Torres Strait Islander Affairs10—I wish to speak about what I regard as the saddest day in the history of the Western Australian parliament. I refer to the vote allowing abortion on demand in Western Australia. It will be regarded as the saddest day in Western Australia's history because abortion is the deliberate killing of an unborn child. Regretfully, by that decision, abortion will replace contraception. It is all very well to say that it allows freedom of choice but, regretfully, the killing of an unborn child ultimately becomes an alternative to contraception.I admire Archbishop Hickey's courage, and I admire the fact that he showed the leadership that he did. I respect Mr Richard Egan for his actions in defending the unborn child.One of the sad things about our current history is that each year 80,000 immigrants come to Australia in order to stimulate the economy while at the same time 80,000 Australians who would otherwise be born here are killed before birth by being aborted. Euthanasia and abortion are the same in principle; it is just that they are at opposite ends of the life cycle.16:17:002027Senate adjourned at 4.17 p.m.