1998-04-063816SENATE202701998-04-06The PRESIDENT(Senator the Hon. Margaret Reid) took the chair at 12.30 p.m., and read prayers.Bills2027r4552027Consideration resumed from 3 April.12:31:002027Brown, Sen BobSenator BROWNQD4TASAG00—I move:(1) Page 2 (after line 20), after clause 3, insert:4 Racial Discrimination Act (1) Without limiting the general operation of the Racial Discrimination Act 1975 in relation to the provisions of the Native Title Act 1993 , the provisions of the Racial Discrimination Act 1975 are intended to prevail over the provisions of this Act. (2) The provisions of this Act do not authorise conduct that is inconsistent with the provisions of the Racial Discrimination Act 1975 .This is an amendment to give the Racial Discrimination Act aegis over the Native Title Amendment Bill that we are dealing with in committee today. The amendment uses almost the same wording as was endorsed by all parties in the Senate when amending the social security legislation bill in 1996. In that bill it was agreed to insert just such an amendment to ensure that the legislation would not be racially discriminatory. I move this amendment in similar words to ensure that this legislation will not be racially discriminatory.The clear intent of the amendment—as it was the intent of Senator Margetts's amendment, which was defeated on Friday—is to ensure that the Racial Discrimination Act prevails so that we do not have discrimination as a result of the Native Title Amendment Bill. The question I put to other entities in this place is this: how can you argue against an amendment which will ensure that there will be no racial discrimination?On Meet The Press yesterday, the shadow minister for Aboriginal affairs, Daryl Melham, had this to say of the legislation coming through this place—which is satisfactory, as Labor sees it: `If we wanted to be destructive, we would be supporting the Greens' amendment, which is a clause-buster.'The only way to take that is to understand that, like the government, and I presume Senate Harradine, the Labor Party will not be supporting this Greens' amendment because it busts racial discrimination in this legislation.6H4HARRADINESenator Harradine—That is not true.QD4Brown, Sen BobSenator BROWN—Senator Harradine says it is not true. I look forward to hearing his response. Through you, Madam Chair, I say to Senator Harradine that it is true.6H4HARRADINESenator Harradine—If you had read this document you wouldn't be saying that.QD4Brown, Sen BobSenator BROWN—I have read that document, and I am saying that, Senator Harradine. I am saying that the amendment that you will be supporting allows for racial discrimination. Senator Margetts made that clear, and there is eminent legal opinion which says the same. Professor Tony Blackshield, in commenting on Senator Margetts's amendment, made it clear that in his opinion the weak amendment coming up next does not do the job. It is not a clause-buster, Senator Harradine, through you, Madam Chair. It is not a clause-buster, as the Labor Party rightly described this one.In this situation, we do need clause-busting legislation. If there is racial discrimination in this bill, and I say there is, let us bust it—let us call a spade a spade. Let us have an amendment here which will make sure there will be no racial discrimination.If an amendment which Labor, Senator Harradine, the Liberal Party and the National Party voted for under the social security legislation was good enough then, please get up and explain, all of you, why it is not good enough for the indigenous people of this country. Why is this amendment not good enough to deal with the Wik 10-point plan which, I repeat, is racially discriminatory?Through you, Madam Chair, conversely, if your 10-point plan is not discriminatory, Senator Minchin, then support this amend ment. Why can't you support this amendment? What clause is there that needs busting, that you need to worry about? But you say there is none.The Labor Party, the government and Senator Harradine say there is no racial discrimination, presumably, in the legislation—there are no clauses with discrimination. We all know that there are, but they say that there are not. So how can they argue against legislation which is tailor-made to seek out such discrimination and which gives the High Court the power to seek out such discrimination and knock it out of this bill if it is there? Instead of that, we have the Labor spokesman on the weekend saying, `We can't support that amendment from the Greens because it might clause-bust where there is racial discrimination.' Well, they are hoist with their own petard; they are uncovered by their own argument. There is no excuse for not supporting this amendment, as there was no excuse, in my books, for not supporting Senator Margetts's even stronger amendment of last week.To each of those who will follow and who oppose this amendment, I will repeat the question: if it was good enough for you to back the social security legislation affecting all Australians, why is it not good enough for you to back this legislation which specifically affects the indigenous people of this country? Answer that!Amendment not agreed to.12:39:002028Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I move:Schedule 1, item 3, page 5 (lines 4 and 5), omit the item, substitute:3 Section 7 Repeal the section, substitute:7 Relationship with Racial Discrimination Act (1) This Act is intended to be read and construed subject to the provisions of the Racial Discrimination Act 1975. (2) Subsection (1) does not affect the validation of past acts or intermediate period acts by or in accordance with this Act. Note: The provisions of the Racial Discrimination Act 1975 apply to the performance of functions and exercise of powers conferred by or authorised by this Act. To construe this Act, and thereby to determine its operation, ambiguous terms should be construed consistently with the Racial Discrimination Act 1975 if that construction would remove ambiguity.I spoke to this amendment at length on Friday. The amendment implements in totality, I would argue, the options under the Racial Discrimination Act in that it reflects what the Senate decided when we last debated this in December last year—that is, to ensure that this particular measure of the government, this legislation, could be tested against the Racial Discrimination Act but tested as a whole.What is provided for in the RDA is a capacity to assess whether a piece of legislation is a special measure and, as such, may conform with the Racial Discrimination Act. That was the principle that was adopted by the Senate last time and that is the principle we are proposing this time with the additional clause that makes it very clear that section 7 will apply with respect to functions carried out under the act. It also makes it more clear that the clause is to be read to ensure assessment as to whether the legislation conforms with the special measure provision. It does not deem it but it ensures the capacity to so assess it.12:41:002028Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I must say that this particular amendment puts the Democrats in a terrible situation because you are asking us to vote for something we voted against. Certainly, section 2 of this, which is the subsection that concerns me, is asking the Democrats to reverse a vote that we have already made in this chamber. Section 2 makes it very clear why the Labor Party wants to fall from the position they took in December and to move subsection 2 which allows them to wriggle out of the—XE4BOLKUSSenator Bolkus—You're wrong, John. That was moved in December, I'm sure. You're not talking about the clauses, are you?HX5Woodley, Sen JohnSenator WOODLEY—I am talking about subsection 2:. . . does not affect the validation of past acts or intermediate period acts by or in accordance with this Act. XE4BOLKUSSenator Bolkus—That was in.HX5Woodley, Sen JohnSenator WOODLEY—That is subsection 2?XE4BOLKUSSenator Bolkus—Yes, that was in.HX5Woodley, Sen JohnSenator WOODLEY—What I am saying is that we voted against the validation of past acts or intermediate period acts under the previous section. You are asking us now to vote for this, when we have—XE4BOLKUSSenator Bolkus—No, we actually accepted 7(2) last time; 7(2) is the same as last time.10000CHAIRMANThe CHAIRMAN—Senator Woodley, are you asking questions of Senator Bolkus?HX5Woodley, Sen JohnSenator WOODLEY—I will turn it into a question.12:43:002029Bolkus, Sen NickSenator BOLKUSXE4SAALP00—What we did last time was to carry 7(1) and 7(2). The only change this time is the addition of the clause note; 7(2) as a substantive subclause was deliberated upon and carried last year. The clause note has a dual effect. It says:The provisions of the Racial Discrimination Act 1975 apply to the performance of functions and exercise of powers conferred by or authorised by this Act.It clarifies that. The second part of the clause note is:To construe this Act, and thereby to determine its operation, ambiguous terms should be construed consistently with the Racial Discrimination Act 1975 if that construction would remove ambiguity.It is the clause note that is the addition. I would argue that the clause note emboldens the operation of the RDA with respect to performance of functions and exercise of powers. I remind you that in the debate last time, the amendment—I think at that stage it was Senator Harradine's—was carried. The argument went along the lines that the amendment incorporating the RDA had the effect of ensuring that the legislation would have to be assessed as a whole as against the Racial Discrimination Act rather than on a one-by-one clause busting operation. So there is no difference in terms of the substantive clause or the interpretation given to it by the clause note.12:44:002029Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—Thank you for that explanation, Senator Bolkus. I was on the wrong track, so I am happy to be pulled back but, in a sense, part of what I said still stands—that is, we have subsection 2 because of the vote for validation of those intermediate past acts. Clearly, it needs to be here so that we do not turn around and reverse the vote which was taken. I was simply pointing out that the Democrats had great problems with and voted against the validation and that is why this subsection gives us some problems. However, I thank you for the explanation that this was in accord with what we passed last time. The Democrats and, I presume, the Greens would prefer the amendment which we moved and which was defeated on Friday, but I give an indication that we will vote for this as a very much second-best option.12:45:002029Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—The problem with this amendment is not that we did or did not vote for it last time. In fact, I am aware of the fact that not only did we vote for it last time, but we helped to put it. The reason we were convinced to vote for this version amongst the various versions last time was that the legal advice we were given at the time indicated that it was a stronger Racial Discrimination Act amendment than has subsequently proven to be the case. The legal advice at the time—and we all know what kind of pressure cooker situation we were in at the end of last year—was that it was an amendment which would subject the bill to the Racial Discrimination Act. The problem with the reading of the bill—and Senator Bolkus knows this very well, although he says that it is a whole measure—is that the Racial Discrimination Act is only taken into consideration when there is any doubt, and that means it is taken as an interpretive tool. In all the advice we have received, that seems to be the growing consensus.The government know this. I guess we will all be looking very carefully to see what the government do in relation to this, but they have the same access to legal advice as all the rest of us. They have seen the advice that Senator Harradine has been given. They have seen the advice that we have tabled from Professor Tony Blackshield and they have their own legal advisers. So the government know that the amendment which is being re-put with the addition from Senator Bolkus is not going to save this legislation from racial discrimination.If I were unkind, I would read out the various quotes from Senator Bolkus at the end of last year where he mentioned that a whole range of people indicated that this bill was racially discriminatory. Of course we know that. We also know that, if there is quite clearly racially discriminatory elements of the bill, elements that do not need to be interpreted, then they will remain racially discriminatory and there is really not a lot we can guarantee the High Court will do.In fact, we believe this is a false premise. We have had a rotten bill put together and, let us face it, that is what we are talking about. The bill that is left, the bill as we see it, the bill that we are debating, is what is left from the decimated rights of indigenous Australians. It is a rotten bill, it is a discriminatory bill. We believe it is the wrong thing to do to get a rotten bill, stick a Racial Discrimination Act amendment in it and then say, `That's fine. We've done our bit for Aboriginal people.' It is exactly what happened during the Hindmarsh legislation, and we know exactly what protection that afforded the Ngarrindjeri women.Therefore, I would say to the ALP that it is not good enough. They know that, we know that, the advice from Senator Harradine would indicate that he knows it, too, and the government know it, too. This is not a clause-buster. It will make very little difference to the government's bill, except where there is interpretation needed. The fact that it was voted for last year was simply that, in the pressure cooker at the time, we received advice that has proven not to be accurate.12:49:002030Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I think I put last Friday the government's reasons for opposing all the proposed amendments on the Racial Discrimination Act. Our position has not changed since this matter was debated last December. The only difference in the proposition being put before us now from that which was put last December is the addition of the note, which I guess purports to try to limit the operation of the provision but, regrettably, the substantive part of the clause has not changed. It still reads that this act is intended to be read and construed subject to the provisions of the RDA. The only exception is the validation regime. From the government's point of view, that still leaves the degree of considerable legal uncertainty which motivated the previous Keating Labor government to consider and reject the inclusion of such a provision in the original Native Title Act. As I said, a particular provision was inserted in that act which we have retained in the Native Title Amendment Bill.I refer senators to what Father Frank Brennan has been saying and indeed what he said in today's Australian on this matter. It hardly needs to be said that Father Frank Brennan is a great supporter of the Aboriginal position on this issue, not the government's. As he said today in the Australian:Since Wik, people have confused the two issues of non-discrimination and making the new law "subject to the RDA". It is essential that any law be as non-discriminatory and certain as possible. Now there is a new RDA problem: any legislative regime implementing Wik has to accommodate prevailing pastoralists' rights over yielding native title rights.Such a regime cannot be rendered subject to the RDA because the RDA ensures that all rights are treated the same. If the Aboriginal and government lawyers can come up with a Solomon-like compromise on the RDA, well and good. Otherwise the Senate should leave it well alone.I think Father Brennan has identified the considerable problems just in one area alone—that is, accommodating the High Court's decision, which we are doing in this bill. The High Court said that, where native title rights have survived and they run into the operation of the pastoralists' rights, then, as a matter of common law, the rights of the pastoralists shall prevail. Why this area is difficult is that not only are we dealing with the interaction of laws that for the first time really involve a property right that is inherently only available to people of a particular race, but that right is founded in the common law, which is, as a fundamental part of our legal system, always subject to statutory rights.As you would know, democratically elected parliaments make statutory law and courts make common law, and statutory law will always prevail in any circumstances. Here we have a situation where the common law right is available only to people of a particular race and, therefore, not surprisingly, the High Court has said that, where there is any clash, the statutory rights prevail. In many cases, as we know, the statutory rights are held by Aboriginal pastoralists. There are Aboriginal pastoralists who exercise these statutory rights and, where their statutory rights conflict with the surviving native title rights, their statutory rights must prevail, as a matter of law, as declared by the High Court.Therefore, in the words of Frank Brennan, it is impossible to impose this sort of provision. The Labor Party's wording still leaves it open to someone to propose that each and every provision of the Native Title Act be read and construed subject to provisions of the Racial Discrimination Act. It does not eliminate that possibility. We do not believe the note, of itself, is a sufficient limitation on the potential operation of this clause.We have to remember that we are talking about a Native Title Act which, as I said before, is probably the most significant federal imposition on land law and land management in this country. It means that virtually every major development on 79 per cent of Australia must comply with that act. If everything done potentially under the Native Title Act is subject to being subsequently challenged by a litigant claiming that there is some inconsistency with the RDA, it would be a legal nightmare, for the reasons most eloquently put by Senator Harradine before lunch in a previous debate.This is a proposition, as I say, the Senate considered in 1993 and rejected because of the potential legal implications—the legal chaos that could result, the legal uncertainty over thousands and thousands of titles issued under this act and the potential nightmare of every provision being challenged. We maintain that the act, as amended, will continue to be beneficial to Aboriginal people. If there is a view that that is not the case, then of course that can be challenged in the High Court and the High Court can decide whether there is any infringement of the races power. But it is simply unworkable and unacceptable and producing of enormous uncertainty to subject the Native Title Act to the provisions of the Racial Discrimination Act.12:55:002031Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Just briefly, the minister seems to have forgotten that something seems to have been missed out here—that is, the certainty for Aboriginal people that they will not be discriminated against and they will not lose their rights. That uncertainty does not seem to have been factored into the consideration.12:55:002031Harradine, Sen BrianSenator HARRADINE6H4TASIND00—The issue of the RDA amendment being incorporated into the native title amendment legislation is one of great symbolic significance to the Aboriginal peoples—the indigenous peoples of Australia. That has influenced me greatly in my consideration of this particular matter.First of all, I suggest to the minister that, far from creating uncertainty, the way the opposition's amendment is now framed is going to give you considerably more certainty than otherwise. Surely it is not considered that proposed section 7(1) is ambiguous because it speaks of the Native Title Act being `read and construed subject to the provisions of the RDA'? It does not say the Native Title Act is `subject to the RDA'. That is a matter of which the government should take full consideration. Presumably it would be much more uncertain if it said that the Native Title Act is `subject to the RDA', but it says that the Native Title Act is to be `read and construed subject to the provisions of the RDA'.If the government's argument is that proposed section 7(1) is ambiguous, the ambiguity can be removed by a statement of the parliament in a manner which will give effective guidance to the interpretation of the law by the courts. This is precisely what the opposition's amendment does. It takes note 301 from the High Court in Western Australia v. The Commonwealth and incorporates it into the legislation. The actual note before us says:The provisions of the Racial Discrimination Act 1975 apply to the performance of functions and exercise of powers conferred by or authorised by this Act.I would have thought that that ought to have gone into the legislation as a substantive clause in any event, and I would not have thought the government would have any objection to that first sentence of the note. The second sentence is, as I noted, from WA v. The Commonwealth, footnote 301, and says:To construe this Act, and thereby to determine its operation, ambiguous terms should be construed consistently with the Racial Discrimination Act 1975 if that construction would remove ambiguity.Of course, that is not a clause-busting provision. It is all very right and glib to say that we need a clause-busting provision so as to bust clauses that are racially discriminatory, but that does not even go near facing up to the facts and also the need to have a degree of certainty.I showed two honourable senators a copy of this document on Friday—if we can remember back that far—which is a six-page document which would probably get into two pages in the Hansard. It is headed: `Notes concerning the RDA amendment'. Rather than take the time of the committee, I seek leave to incorporate those notes into Hansard.Leave granted.The document read as follows—Notes concerning the RDA AmendmentIntroductionOne of the most publicised aspects of the Senate debate on the Native Title Amendment Bill 1997 concerned the amendment of s 7(1) of the Native Title Act 1993 dealing with the relationship between the Native Title Act and the Racial Discrimination Act 1975.1 During the debate on the amendment on Friday, 5 December 1997, Senator Harradine indicated before the luncheon adjournment that he would oppose the amendment. On the resumption, however, the Senator informed the Senate that he had changed his mind and that he now proposed to support the amendment.2 As a result of Senator Harradine's vote, the amendment was passed by the Senate. In the House of Representatives on Saturday, 6 December 1997, the Prime Minister identified the Senate's amendment of s 7(1) as one of the four reasons for the Government's decision to reject the Bill as amended by the Senate. He said, "The third of the proposals which we reject is the proposal to subject the Native Title Act to the provisions of the Racial Discrimination Act."3 However, a detailed consideration of the amendment, indicates that the Government, by so characterising the proposal, has misunderstood the effect of the Senate's RDA amendment and that there is no technical legal justification for the Government's rejection of it.History of s 7 of the Native Title ActBefore considering the Senate's amendment of s 7, it is worthwhile reviewing the history of the section. It was enacted in the 1993 Act in the following terms:Racial Discrimination ActOperation of the RDA not affected 7.(1) Nothing in this Act affects the operation of the Racial Discrimination Act 1975.Validation provisions not affected (2) Subsection (1) does not affect the validation of past acts by or in accordance with this Act.That provision was included in the Act as the result of an amendment to the Native Title Bill 1993 when it was debated in the Senate in December 1993. The amendment (Green amendment No. 1A inserting a new clause 6A) was moved by the Greens and supported by the then Government as well as the Democrats and Senator Harradine. The wording of the provision was a compromise reached by the Government, the Democrats and the Greens in order to minimise the uncertainty which the Government feared might flow from a provision which subjected the whole of the Native Title Act to the Racial Discrimination Act 1975. Senator Gareth Evans acknowledged this point in the debate:The concern was that if we overemphasised the specific need for continued consistency with the RDA, perhaps [the legislation's being a special measure under s. 8 of the Racial Discrimination Act 1975] might somehow be put at risk, or other unforeseen consequences may arise. . . . [The provision] makes clear that the Racial Discrimination Act will apply to the provisions of this act and conduct carried out under it. . . . There has never been any doubt about our good faith in wanting the RDA to apply. We have just been concerned about possible unforeseen technical consequences flowing from its application. I think those concerns are met by this drafting.4 Senator Alston questioned Senator Evans on whether the amendment might itself have unforeseen consequences. He referred by way of example to a number of provisions in the Bill including one preserving public access to beaches. (This provision is to be found in s 212(2) of the Act). Senator Evans replied:As to the other specific matter that Senator Alston raised on the question of access to beaches, there is I suppose a question mark which does still exist in one's mind. . . . It is not inconceivable that that [provision] might possibly be construed as being a discriminatory act against Aboriginal people in breach of the RDA.If that is a problem then the parliament will just have to deal with that when it arises in an explicit way. . . . Having regard to, but not being determined in our response by, the advocacy of Aboriginal groups, our belief is that the risk factors, if you like, associated with having a clause like this are not so great as to outweigh the utility of having a clear and resounding demonstration in the body of the legislation itself, not just the preamble, that we really do value the RDA and want to give it effective operation.5Prior to the enactment of the Native Title Act, the Western Australian parliament had passed its own legislation purporting to establish an alternative native title regime to that proposed in the Commonwealth legislation.6 Under the WA legislation common law native title was extinguished and replaced with statutory rights of traditional usage within a regime prescribed by the Act. After the enactment of the Native Title Act, the WA Government commenced proceedings in the High Court which, inter alia, challenged the validity of the Native Title Act and various substantive provisions thereof.7 This was an important part of WA's case as s 11 of the Native Title Act (which applied to State legislation passed on or after 1 July 1993) provided that native title was not able to be extinguished contrary to the Act. By virtue of s 109 of the Constitution inconsistent WA legislation would have no valid operation.In the course of the case, the WA Government argued that s 7(1) was destructive of the substantive provisions of the Native Title Act. The submission was summarised by the joint judgment of Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ as follows:The Native Title Act was said to discriminate in favour of Aborigines and Torres Strait Islanders and thus to offend the Racial Discrimination Act. As s 7(1) preserved the operation of the Racial Discrimination Act, so the argument ran, the offending provisions of the Native Title Act "must be regarded as inoperative".8 The High Court dismissed the submission. The joint judgment said that the argument encountered considerable obstacles and gave three reasons, the effect of which may be summarised as follows:1. It is not easy to detect any inconsistency between the Native Title Act and the Racial Discrimination Act.2. If there were any discrepancy in the operation of the two Acts, the Native Title Act can be regarded either as a special measure under s 8 of the Racial Discrimination Act or as a law which, though it makes racial distinctions, is not racially discriminatory so as to offend the Racial Discrimination Act or the International Covenant on the Elimination of All Forms of Racial Discrimination.3. Even if the Native Title Act contains provisions inconsistent with the Racial Discrimination Act 1975 both Acts must be construed so as to avoid absurdity and to give to each of the provisions a scope for operation.9The joint judgment then stated that the only manner in which the Native Title Act could be construed as affecting the operation of the Racial Discrimination Act 1975 was in the application of the ordinary rule of construction that the general provisions of an earlier Act must yield to the specific provisions of a later Act. The judges concluded:Section 7(1) provides no basis for interpreting the Native Title Act as subject to the Racial Discrimination Act. The Native Title Act prescribes specific rules governing the adjustment of rights and obligations over land subject to native title and s 7(1) cannot be construed as intending to nullify those provisions. It may be that s 7(2) is otiose but that provision is properly to be seen as inserted out of an abundance of caution. It follows that the inconsistency between the WA Act and the Racial Discrimination Act either survived enactment of the Native Title Act or, if the Native Title Act affected the relevant provisions of the Racial Discrimination Act, from the time when that occurred, an inconsistency arose between the WA Act and s 11 of the Native Title Act.10In other words the High Court was quite explicit that s 7(1) did not nullify the substantive provisions of the Native Title Act as argued by WA. However, as regards the effect of the subsection, the High Court did not make a definitive finding. Earlier in the judgment the judges said, "It is difficult to identify the legal purpose which this provision is intended to serve."11 And earlier still they said in a footnote:Although nothing in the Native Title Act affects the operation of the Racial Discrimination Act, nothing in the Racial Discrimination Act is capable of affecting the operation of the Native Title Act properly construed. However, to construe the Native Title Act and thereby to determine its operation, ambiguous terms should be construed consistently with the Racial Discrimination Act if that construction would remove ambiguity 12In the context of the case before it, the High Court did not need to resolve the difficulty in identifying the legal purpose which s 7(1) was intended to serve. The WA legislation was inconsistent with both the Racial Discrimination Act and the Native Title Act. Therefore, if, in accordance with the normal rules of construction, the general provisions of the Racial Discrimination Act must yield to the specific provisions of the Native Title Act, then the WA legislation was inconsistent with s 11 of the Native Title Act. If, however, by operation of s 7(1) the general provisions of the Racial Discrimination Act did not yield, then the WA legislation was inconsistent with that Act.The uncertainty which the High Court's reasoning exposed as to the legal efficacy of s 7(1) still exists and will continue to exist until the parliament amends the provision or the High Court in a suitable case decides the issue.Senate Debate on the Native Title Amendment Bill 1997Despite this uncertainty and the High Court's criticism of s 7(1), the Government in its Bill did not seek to amend the provision. Only s 7(2) was to be amended to include reference to intermediate period acts in the exclusion provisions of that subsection.The Opposition, in its extensive list of amendments released shortly prior to the Senate debate did not seek to amend s 7(1) either. Rather it proposed to amend the Native Title Amendment Bill 1997 by adding to the operative part of the Bill a new section containing an express declaration of the intention of parliament that the provisions of the Racial Discrimination Act are to prevail over the provisions of the amending Act. That proposed amendment has been criticised by the Government and others for going the extra distance which Senator Evans in 1993 had indicated the Opposition, when they were in government, were not prepared to go. But more fundamentally, it applied only to the amending Act. In other words, when reading the Native Title Act as amended by the Native Title Amendment Bill 1997, one would have to be alert to what sections were in the original Act and what sections had been inserted or amended by the amending Act. The uncertainty identified by Senator Evans in 1993 was liable to be compounded by the form of the proposed amendment.By the time the Opposition amendment came to be moved in the Senate, however, further consideration had been given to the matter and the amendment had been considerably refined. Rather than adding a separate section, the amendment as moved altered the wording of the existing s 7(1) to read:(1) This Act is intended to be read and construed subject to the provisions of the Racial Discrimination Act 1975.This is a substantially different provision to that which had originally been proposed by the Opposition. However, the Government does not seem to have comprehended the difference. In the debate Senator Minchin said, "Could I just forewarn Senator Bolkus that I would not mind his explaining this quite innocent question: what is the difference in the wording between the original ALP amendment on this issue and the new amendment?"13 Without waiting for an answer to his question, Senator Minchin continued his speech. It is apparent from this speech that the Senator was in fact still focusing on the vices demonstrated by the original amendment. He criticised the Opposition for proposing something that they were not prepared to contemplate in 1993 and he used such words as "To make the Bill subject to the RDA will have exactly the consequences which . . . Senator Evans forecast, and therefore it is unacceptable."14Similarly, Senator Harradine seems to have been of the view that the amendment as moved was in substance no different from the original Opposition amendment. In his pre-lunch speech he stressed the uncertainty issue:I am saying that this measure we have before us today is really a huge invitation to constant, endless litigation. It is not going to do anybody any good. If that is the outcome of placing the RDA provision that has been moved by Senator Bolkus into this legislation, it certainly will create widespread uncertainty, which we do not wish to have. . . . In putting the RDA provision in here, you want a lawyers picnic. You do not want to have a degree of certainty. You are inviting the government to say, `This measure is totally unworkable'. . . . It is unworkable because every provision in the legislation will have to be subject to the RDA. There will be endless litigation about it.Why did we not put it in the 1993 legislation? For the very reason that we ought not be putting it in here. The Labor government at that time knew that it was a nonsense to put a similar provision in the Native Title Act.15In his post-lunch speech it is apparent that the Senator more fully appreciated the distinction between the original Opposition amendment and the amendment as moved. Focusing on the words of the amendment, as well as the important political significance of the issue itself, he said:I am coming to the view that, unless we do what is being proposed—that is, to have the bill read and construed subject to the provisions of the RDA—we may be sending the wrong messages to the whole of Australia and to all Australians . . . .I feel that it would be unwise for the government to maintain the view that it would be unworkable. The view that I had come to was that the government would regard it as totally unworkable if the RDA provisions went in. I hope the government will see that, in the end, it is probably better to have the RDA provisions there. We tried it in 1993 in subsection 7(1) . . . . As has been expressed around the chamber, subsection 7(1) of the RDA [sic] was found by the High Court to be less than operable. That is the message that has been given to us by the High Court. Perhaps we ought to heed that message and include what is being proposed by the opposition in this bill. Otherwise you could have efforts by some people to overturn this measure by stating that the measure is not constitutional under the race power.16Why the Government can and should accept the Senate's RDA amendmentThe Senator's speech encapsulates the elements which justify the amendment as moved and ultimately adopted by the Senate:1. It is a response to the High Court's criticism of the existing provision.The Court did not have to decide the legal effect of the provision because the WA legislation was held to be inconsistent with both the Racial Discrimination Act and the Native Title Act. However, the Court did indicate that, if the provision had any meaning at all, then it was limited to altering the ordinary rule of construction applying to inconsistent statutes. The Senate amendment confirms that that is indeed the legal effect which is to be given to the provision. Were s 7(1) to remain unamended then ultimately the High Court would have to decide if the provision had any efficacy. Until such a case were heard and determined there would be uncertainty in this regard. What the Senate has done is to remove that uncertainty and to make clear how the legislature wants the provision construed rather than leaving it up to the High Court to make the decision for it.2. It re-enacts what the parliament agreed to do in 1993Contrary to what Senator Minchin, in the hurly burly of the debate, may have thought the effect of the amendment to be, it should now be seen, in the light of considered analysis, that it does not do that which the Prime Minister asserted in his speech to the House on 6 December 1997. The amendment does not say, "This Act is subject to the provisions of the Racial Discrimi nation Act 1975". Rather, it comprehends the construction issue identified by the High Court in footnote 301 and in the third of its reasons for rejecting the submission of the WA government on the effect of s 7(1). In that regard it should be noted that the High Court said that "Section 7(1) provides no basis for interpreting the Native Title Act as subject to the Racial Discrimination Act "173. It would be unwise for the Government to maintain the view that it would be unworkable.The High Court said that s 7(1) does not nullify the specific provisions of the Native Title Act. To reinforce that point the judges said that s 7(2) may be otiose and "is properly to be seen as inserted out of an abundance of caution."18 Section 7(1), in its original or amended form, so construed does not provide a firm foundation for a challenge to specific provisions of the Native Title Act such as those relating to past acts, future acts, or, in terms of the Native Title Amendment Bill 1997, confirmation of past extinguishment.4. Failure to respond to the High Court's criticism of s 7(1) would send the wrong message to Australia and to all Australians.The High Court having expressed doubt as to the efficacy of s 7(1), the issue then becomes whether the parliament considers it sufficiently important for it to amend the provision so as to remove the doubt. By failing to act, the parliament will indicate that it no longer considers an effective RDA provision to be worth worrying about and that it is prepared to let the High Court decide whether the relationship is to have any efficacy..5. The presence in the Act of an effective s 7(1) enhances the prospects that the Native Title Act as amended by the Native Title Amendment Bill 1997 will be held to be constitutionally valid as being within the races power (s 51 (xxvi) of the Constitution). The Government has consistently maintained that its Bill is not racially discriminatory. Many critics have rejected that assertion and have contended that because the Native Title Amendment Bill 1997 does (and the Native Title Act as amended by the Bill will) racially discriminate against the indigenous people of Australia, it will be found by the High Court to be invalid. That view depends on the High Court's holding that the races power requires legislation to be beneficial. This is an issue which is yet to be resolved. If there is such a requirement, then the presence in the legislation of an effective provision relating to the Racial Discrimination Act will provide additional scope for the Government to argue that the Bill and the amended Act, on balance, are beneficial and/or a special measure.ConclusionIf the Government were to agree to the Senate's RDA amendment, there would be less—not more—uncertainty than exists under the present legislation. The issue of access to the beaches, for example, remains whether the parliament adopts the original s 7(1) or the amended form. But that is not a problem created by the Senate amendment of December 1997. The parliament in 1993 indicated when it enacted the Greens amendment No. 1A that it was prepared to accept the risk in that regard. Four years later we still do not know whether the risk is real or not. (But the High Court's comments on the limited effect of s 7 suggest that it is not real.) However, we do know that by leaving s 7(1) in its unamended form the uncertainty as to the efficacy of s 7(1), identified by the High Court in 1995, will remain until the High Court, rather than the parliament, decides the issue.1 See, for example, Australian, 6 December 1997, p. 6; Sydney Morning Herald, 6 December 1997, p. 2; Age, 6 December 1997, p. 14.2 Senate Proof Hansard 4-5 December 1997, p. P9915-P9916; P9922-P9923.3 House of Representatives Proof Hansard 5-6 December 1997, p. P11752.4 Senate Weekly Hansard 13-16 December 1993, p. 5062.5 Senate Weekly Hansard 13-16 December 1993, p. 5063.6 Land (Titles and Traditional Usage) Act 1993. The Act came into operation on 2 December 1993.7 Western Australia v The Commonwealth (1995) 183 CLR 373.8 (1995) 183 CLR 373 at 483.9 (1995) 183 CLR 373 at 483-484.10 (1995) 183 CLR 373 at 484.11 (1995) 183 CLR 373 at 483.12 (1995) 183 CLR 373 at 453 footnote 301.13 Senate Proof Hansard 4-5 December 1997, p. P9910.14 Senate Proof Hansard 4-5 December 1997, p. P9911. See also the Senator's further remarks on p. 9921.15 Senate Proof Hansard 4-5 December 1997, p. P9916.16 Senate Proof Hansard 4-5 December 1997, p. P9923.17 (1995) 183 CLR 373 at 484.18 (1995) 183 CLR 373 at 484. 6H4Harradine, Sen BrianSenator HARRADINE—I thank the committee. I would point out to the Senate and re-emphasise a number of points in the notes as to why the government can and should accept the Senate's RDA amendment: first of all, because it is a response to the High Court criticisms of the existing provisions, and it is the situations that have given rise to those criticisms by the High Court that have concerned the government. The High Court did not have to decide the legal effect of provisions because the WA legislation was held to be inconsistent with the RDA, and also with the Native Title Act. But the court indicated that, if the provision had any meaning at all, then it was limited to altering the ordinary rule of construction applied to inconsistent statutes. The Senate amendments confirm that that is indeed the legal effect which is to be given to the provision.Secondly, the RDA amendment actually re-enacts what parliament agreed to do in 1993 and I have to point out that I have often wondered why the government was so concerned about this particular matter. I fear that the government may have thought that the effect of the amendment was that it should be now seen, in the light of considered analysis, that it does not do what was suggested by the government the last time we met. The Prime Minister asserted in his speech on 6 November, and this is very important—it is worth while reading the Prime Minister's comments—that, because of the RDA amendment, the act would be subject to the provisions of the Racial Discrimination Act 1975.In fact, as I have just indicated, that is not the situation at all on this particular measure. We are saying that the provision means that it is to be read and construed subject to the RDA. It does not say that the Native Title Act is subject to the RDA. Now, of course, it is made even more certain because the opposition is suggesting, and I am supporting it, that it comprehends the construction issue identified in the High Court's footnote of 301 in the third of its reasons for rejecting the submission of the WA government on the effect of section 7(1). In that regard it should be noted that the High Court said:Section 7.(1) provides no basis for interpreting the Native Title Act as subject to the Racial Discrimination Act.That is something that account should be taken of by the whole of the committee, including the government. The third point that I make is that it would be unwise for the government to maintain the view that the provisions that we are suggesting would be unworkable. The point is that the High Court said that section 7(1) does not nullify the specific provisions of the Native Title Act. To reinforce that point, the judges said that section 7(2) is:. . . properly to be seen as inserted out of an abundance of caution. Section 7.(1) in its original or amended form, so construed, does not provide a firm foundation for a challenge to specific provisions of the Native Title Act, such as those relating to past acts, future acts, or in terms of the Native Title Amendment Bill 1997, confirmation of past extinguishment.Again, the fourth point that I am putting to the government is that failure to respond to the High Court's criticism of section 7(1) would send the wrong message to Australia and to all Australians. The fifth point is that the presence in the Act of an effective section 7(1) enhances the prospect that the Native Title Act, as amended by the Native Title Amendment Bill 1997 [No. 2] , will be held to be constitutionally valid, as being within the races power of section 51(xxvi) of the constitution.The government has consistently maintained that its bill is not racially discriminatory. Many critics have actually rejected that assertion and have contended that because the Native Title Amendment Bill 1997 [No. 2] does, and the Native Title Act, as amended by that bill, will, racially discriminate against the indigenous people of Australia, it will be found by the High Court to be invalid. That view depends on the High Court's holding that the races power requires legislation to be beneficial and, despite what happened in the Hindmarsh Island decision, you would be a very brave person to bet which way the High Court might ultimately fall in regard to that particular matter.HX5WOODLEYSenator Woodley—True, very true.6H4Harradine, Sen BrianSenator HARRADINE—Thanks, Senator Woodley. This is an issue which is, despite what has happened in the Hindmarsh Island case or because of what was said in the Hindmarsh Island case by a number of the judges, yet to be resolved. If there is such a requirement, then the presence in the legislation of an effective provision relating to racial discrimination will provide additional scope to the government to argue that the bill and the amended act, on balance, are beneficial and/or a special measure.I think the amendment moved by Senator Bolkus for the opposition should be embraced at this time by the government. There has been a fear that it would be a clause busting provision. The Senate deliberately voted against such proposals on Friday. I believe this particular provision put forward by the opposition should be supported by the committee and I believe it ought to be supported by the government as well.13:09:002037Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I want to ask the minister a question. I listened to his speech and I think it is important that I ask this question in terms of the vote we are about to take. Minister, I understand that the whole issue of the Racial Discrimination Act applying to the Native Title Amendment Bill is one of the government's sticking points. Are you saying that—and I think this is helpful to us if I can ask you this question—this really would be one of those points at which the government could not accept such an amendment and would, as far as you are concerned, strike down the bill if we pass this amendment?13:10:002037Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—The government has stated repeatedly that the four critical sticking points with the Senate amendments are the Racial Discrimination Act, the registration test, the right to negotiate and the sunset clause. Amendments of that kind were rejected by the government in the House of Representatives in December. Nothing in this amendment of the Labor Party has so altered the intent of the Senate's amendment in such a way as to suggest that the government could do anything other than reject this amendment. It remains a critical provision for us because of the enormous impact of the Native Title Act on Australia. Now, following the Wik decision, the amended act will affect every single exploration and mining lease and major development on 79 per cent of Australia. That is where all that sort of activity occurs anyway, so we are talking about everything in Australia being affected by the Native Title Act as amended. We simply are of the view, on balance, that to subject the act to the provisions of the Racial Discrimination Act would render the practical workability of the Native Title Act so uncertain for the billions and billions of dollars of activity that occurs every year in Australia as to make this an unacceptable proposition. Thousands of people every day decide whether they are going to invest their money, seek licences, seek leases or engage in developments that create jobs and create wealth. They have to go through all the state provisions to achieve what they want to do. Then there is another layer to go through of everything to do with the Native Title Act. Any responsible lawyer advising any major developer is going to say, `Yes, we think that, if you do all this, you'll comply with the state things. If you do all this, we think you'll comply with the Native Title Act, but of course I've got to tell you that, in terms of your investors, your shareholders, your lenders and everybody else, there is always the possibility of someone challenging what you are doing in your investment and your lease, even if you've got it validly under the NTA, as somehow invalidly issued because of the operation of the RDA.'They may not have a case, but for a developer who is risking shareholders' funds of, as we know with Century, a billion dollars or whatever, you have to look at the risks. If there is a risk that the lease upon which your whole investment depends could be held up in court for who knows how long even though you have passed all the steps along the way and got it validly issued under the Native Title Act—which of course is not an easy process—but, because of some asserted problem resulting from the fact that the act is intended to be read and construed subject to the provisions of the Racial Discrimination Act, it will have, in our view, potentially devastating consequences. To pick up on what Senator Harradine said, he is seeking to assure us that the words `to be read and construed subject to the RDA' are different from saying `subject to the RDA'. He may be right, but he may be completely wrong. I can guarantee you that, if you were to pass this and we were to accept it, there will be a legal argument put that, in practice, there is really no difference and that the act should be seen as subject to the RDA. That will be an argument that would be put—who knows what a court might find? Who knows then whether we are going to be in a situation where every provision of the NTA is to be examined subject to the provision of the RDA or whether everything done under the NTA is subject to challenge as being somehow inconsistent with the RDA.I have to say no-one in here has yet given me an answer to the very problem identified by Father Brennan—that we are now dealing with native title having survived on pastoral leases, an issue that the Senate did not have in its mind when it passed the Native Title Act. We now have a situation where the High Court has said there is a hierarchy of rights on pastoral leases, which is totally inconsistent with the whole notion of the RDA that you have equal rights.From the other point of view, you also have to acknowledge and remember that the right to negotiate is a procedural right available only to a certain group of people, not to any other titleholders. It is arguable—and the argument is put—that it is a discriminatory right. If you start imposing these sorts of double jeopardy propositions, in our view you do enormous damage to the certainty that is required of the law, particularly in an area like property law where the certainty that is required is fundamental to the prosperity of the whole nation. The very issue that we are all concerned about—the workability of the Native Title Act—is dramatically affected potentially by the operation of this provision.13:16:002038Brown, Sen BobSenator BROWNQD4TASAG00—In a way what Senator Minchin says corroborates the point of view that we have been taking here. There needs to be clarity and there needs to be certainty. We should not be leaving it to the High Court to sort this out. Sadly, that is what this weak, middle of the road provision does. It does not give that clarity and certainty that Senator Harradine is calling for and it is not properly responding to the High Court when it says that a clear message should be given to the people of Australia about that.I submit we are in here to ensure that we do not discriminate against the indigenous people of this country wholesale through this legislation. I submit this legislation does just that and a lot of other people think the same, not least the indigenous people in this country. But if it does not and the government is right in what it says, it ought to have had no trouble accepting any amendment which empowered the High Court to look at it.Talk about double jeopardy. The fact is there is double talk on the other side of the chamber when it comes to this provision. Senator Minchin says that it will affect every single development on 79 per cent of Australia. What about the indigenous interests there? He is saying that indigenous interests in their land, in their traditional rights and in their culture being given integrity are going to be serially dented, eroded and affected by this panoply of developments that he foresees across 79 per cent of Australia. We can argue with that one, but that is the one that the Prime Minister brought forward.`They should have no protection if it discriminates against them'—that is what is being said here. The government does not want the indigenous people of this country to be protected when it moves to back those who would develop the country in a way which is inimical to their rights and interests. It is more than that. This is cutting the ground from under the indigenous people's rights to have even a say. Let us remember that.These developments are not just mines; they are dams, cotton crops, broad scale plantations, potential woodchip operations, deep sea fisheries, oil drillings, roads, canals and fences. There are huge changes to northern Australia coming up. The government is saying, `We are not going to give the indigen ous people a right to a say even in what happens'—no negotiating rights. That of itself would be bad enough, but Senator Harradine and the Labor Party are saying, `Ditto: the indigenous people get no say in the transformation of their country that is coming up.'The government is saying, `Let's not have the Racial Discrimination Act surveying this loss of rights to the indigenous people.' Labor and Senator Harradine are saying, `Let's have some weak, middle of the road provision'—as it turns out to be; we thought it was strong last December and we find out now it is not, as Senator Margetts has pointed out—`which will leave it to the High Court. But we hope it will tie the High Court's hands in a way that it is not going to get down to any specific clauses in this legislation which may be racially discriminatory.'The best the High Court can do is weigh up all the discrimination with the benefits and, if on balance it is satisfied that it is not too bad for the Aboriginal people, then the discrimination stands. There is to be no clause busting here; discriminatory clauses which specifically discriminate against the indigenous people of this country stand. That is what is being put to the Senate. That is why we oppose it.As Senator Woodley said, the Labor Party, Senator Harradine and the government having failed the test on this issue now leave us in the position where we support the weak fall-back provision, the one we thought was strong last December. The problem with that is that this is going to be revisited not just on us but on this community for a long time to come. You cannot discriminate against people through legislation and get away with it. You cannot divest yourself of the responsibility as legislators to leave it to the courts to sort it out.Senator Harradine says we should have clarity here. The clarity was in Senator Margetts's amendment and the amendment I moved this morning, both of which he opposed. They said to the High Court, `Discrimination in this legislation will be removed.' That is what our amendments said. Senator Harradine voted that down. The Labor Party voted that down. The government voted that down.So the best we get is, `Put it back to the High Court without clarity and hope it will come up with a resolution.' That is not strong or courageous legislating. That is, at best, ducking the issue. I submit that there will be people voting for this legislation who will be hoping it has no effect, taking into account the Brennan theory that the problems coming out of it are too much for us to face up to. I submit that, given our history, it is about time we did take a stand. That might cause the community a little bit of difficulty. But at least we should face up to reversing the troubles that the indigenous people have had in the past and making sure that we do not compound them into the future.The final thing I want to say—and I do not want to allow this to pass—is that I challenged the Labor Party, I challenged Senator Harradine, and I challenged the government to get up and say why they did not support the clear indiction to the High Court not to allow racial discrimination; and why they do not support busting clauses which are discriminatory. Not one of them got to their feet. I am not allowed to call that cowardly but I submit that that is what it is. I submit that it is ducking their responsibility to answer for what they are doing. I submit that it is failing to have the gumption to get up here and defend the indefensible. Their silence speaks volumes. Their absence of response speaks volumes about what is happening here and they ought to think about that.13:24:002040Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—The minister has indicated that nothing has changed since last year. They have made very strong statements, apparently, with regard to what they want and do not want out of this debate about dispossession at the margins. I am wondering if this means that we can all go home now. The government has said they are going to take their toys and go home and that means there is absolutely no point in our continuing on this debate. Is that, in fact, the case or will the theatre be played out in the lower house when we all know that this amendment does, at best, very little? After a display of hands on hearts and wringing of their hands, we will find that the government has decided after all that their advice might not have been what it was and that this amendment does what we have said—that is, very little.I notice the minister has gone behind the screens with Senator Bolkus. I do not know whether this is to find another form of words or whether this is to make a new statement which will clarify whether this is game, set and match. Perhaps it means that this is where the debate ends and the rest becomes purely icing on the cake. Perhaps what we should have done, as a Senate, is made sure that the very best amendment went in. It seems that this is largely theatre with the government saying to the audience, `Look, this really is not going to do much so go on, accept it, ` which is what I am hearing. The government is saying, `This really is not going to bust your clauses. This isn't really going to make sure we are not discriminatory in the bill. Come on, let us have it. Let's pretend,' because that is what it is—it is pretence.What is happening behind the screen now? Do we now have an announcement that we can all go home, that in reality all the rest is just nonsense? Or is the government going to say, `Okay, maybe we were badly advised before and we really are going to accept it'? Or, do we now have a new emanation and people are going to come out with a new decision altogether which is even weaker than the weak amendment we are being asked to accept again?13:26:002040Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I thank the minister for his answer because it did clarify the situation for us very well. I actually thought that Senator Harradine's arguments may have swayed the government because they were very convincing. Let me say again that, although this is certainly not the Democrats preferred option, we will vote for this amendment. It looks to me as if the government is not prepared to shift at all. I might say there has been a lot of talk about compromise, but it has only been one side that has been asked to compromise. The government has not shifted one little bit. I do not know whether they believe the 10-point Wik plan is a compromise. But that compromise was never worked out with anyone except the government and the people it wanted to talk to.It is quite clear now that the government's refusal to consider the application of what I regard as Australia's primary human rights legislation—that is, the outlawing of racial discrimination—is a real trigger for a race election based on Wik. I wonder whether, reiterating what Senator Margetts said, there is any point in going any further once we do vote on this particular amendment, if it means that that sticking point will be sufficient to strike down this legislation. I asked the question because I wanted to be very clear when I voted what it was I was voting for. It may be that if it is sufficient to strike down the bill—and I thought that was what the minister was saying to us—then perhaps the rest of the debate might need to be adjourned. I do not know. But if this clause is totally unacceptable to the Howard government, then perhaps we are on the way to an election. That is why I was grateful to the minister, even though I disagree with his position, for at least clarifying that no further qualification of the Racial Discrimination Act would be acceptable to the government. If this qualification—which I agree is very much a second best option—is not acceptable to the government, then perhaps we should all go home. I certainly have a lot to do before Easter. Perhaps that statement should be made and then let us see which way the vote goes.13:29:002041Brown, Sen BobSenator BROWNQD4TASAG00—I wondered if we might have a report from the extra-chamber meeting that just took place out there.13:29:002041Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I was about to speak to Senator Margetts and Senator Brown as well. As I understand it, the working group would prefer to have the four sticking points dealt with up front in this particular debate. I am sorry, Senator Margetts; I was about to see you but you were on your feet and then, when you sat down, I wanted to hear what Senator Woodley had to say—but I have spoken to Senator Woodley, Senator Minchin and Senator Bolkus about that. If the Greens have no objection to that, it might be the way to go if we are coming to the crunch.13:31:002041Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Is the minister going to respond to the question about whether or not there is any point in continuing after this vote?13:31:002041Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—The question suggests that the government would withdraw the bill. The government is not withdrawing the bill. The government has put this bill to the Senate and it wants the Senate to pass the bill in the form presented to the Senate. Obviously, we should and will debate the amendments that have been put and see what form the bill comes out of the Senate in. It will then go to the House of Representatives for the House of Representatives to consider its reaction to the bill. We hope and intend that there will be a full debate on this bill and that we will pass the bill—albeit, as it would appear, with some amendments which the government may not be able to accept in the House of Representatives.In response to Senator Woodley in relation to the RDA, I can only deal with amendments as presented by other parties to the bill as presented by the government. The amendments presented to the government on the RDA are, for the reasons I have outlined, not able to be supported by the government. I have repeatedly said on behalf of the government that, in relation to the whole bill, we are not in a position to compromise it or reduce its workability but any propositions on any issues which meet government policy, are workable and practical will obviously be considered by us.The government has put in 99 amendments to this bill which attempt to meet some of the concerns raised by the Senate last time and which meet them in a way that we think clarifies the operation of the act, improves the act, and meets some of the misunderstandings that were raised in the last Senate debate. That is an act of good faith on our part. It shows our reasonableness in the way we wish the bill to be dealt with.Throughout this debate, we will continue to treat all proposed amendments on their merits and consider them against the criteria—which I am bound to apply as the representative of the government—of whether or not they are consistent with government policy, practical and workable. Amendments put before the government in relation to the RDA do not meet those criteria.13:33:002042Brown, Sen BobSenator BROWNQD4TASAG00—Just following up on what Senator Margetts had to say: I do not think she asked the minister if the government would withdraw the bill; what she was getting at was whether, if this amendment is passed, the government is still going to entertain accepting the legislation in the House of Representatives or whether it is firm on the position that it has taken consistently in public that an RDA amendment would not be acceptable.13:34:002042Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I can only repeat government policy. It is a matter for the government in the House of Representatives, but government policy is that the amendments that have been proposed in relation to the Racial Discrimination Act are unacceptable to the government and would be rejected by the House of Representatives. That is the policy. I have no reason to believe that that would change.13:34:002042Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I have just one sentence: I think it is very important that we make clear that this is, in fact, the trigger for a double dissolution that we are voting on, and I do not resile from voting in the way which I have already indicated. Question put: That the amendment (Senator Bolkus's ) be agreed to.13:39:00The committee divided. (The Chairman—Senator S. M. West)32Allison, L. Bartlett, A. J. J.Bishop, M. Bolkus, N.Bourne, V. Brown, B.Campbell, G. Carr, K.Collins, J. M. A. Conroy, 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.31Abetz, E. Alston, R. K. R.Boswell, R. L. D. Brownhill, D. G. C.Chapman, H. G. P. Colston, M. A.Coonan, H. Crane, W.Eggleston, A. Ellison, C.Ferguson, A. B. Heffernan, W.Herron, J. Hill, R. M.Kemp, 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. Payne, M. A.Reid, M. E. Synon, K. M.Tambling, G. E. J. Tierney, J.Troeth, J. Vanstone, A. E.Watson, J. O. W.Cook, P. F. S. Ferris, J.Cooney, B. Knowles, S. C.Gibbs, B. McGauran, J. J. J.Neal, B. J. Calvert, P. H.* 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 affirmative.10000CHAIRMANThe CHAIRMAN—That completes debate on the Racial Discrimination Act. We will now deal with the groupings of amendments under the registration test.13:43:002042Bolkus, Sen NickSenator BOLKUSXE4SAALP00—The issues of threshold tests have become quite relevant here. In this area, as in all the others, the opposition moved quite a number of amendments last time—amendments which presented an alternative approach to the problems here but amendments which, in the main, were not accepted. As reflected in the second reading amendment, our concerns are and continue to be that the government has gone too far and, in going too far, questions arise as to workability, constitutionality and also unfairness.The starting point for the opposition in this area—and I think this is the position of others in the Senate—is that changes are needed here. There are problems; there are problems in terms of overlapping native title claims. Some claims have been lodged in ambit terms, whilst a small number have been overly optimistic. But our proposals differ from the government's in that our proposals maintain that the government has failed to sufficiently take into account the fundamental cultural relationship between Aborigines and their land. The government's amendments are extremely onerous and in some respects are based on a denial or a winding back of the common law.Our amendments had a number of major purposes. Specifically, they were geared towards ensuring that claims would not be registered unless they comply with strength in criteria and they are geared towards assigning clear roles for the register, for the rep bodies and for the registration process. We also attempted to make explicit provision for challenges to be made against false claims and applications. Concern has been with respect to overlapping claims. What we tried to do last time was to provide mechanisms for dealing more effectively with overlapping claims on the current register and with claims registered since June 1996.Our criticism of the government's position is and continues to be that the threshold test in the Native Title Amendment Bill 1997 [No. 2] is complex, is ambiguous in places and extends beyond a reasonable balance. For instance, the government's physical test started out by excluding those who had been locked out of their country. We felt that was totally unjust.The other injustice we identified was that in the government's provision they were paring back the common law. The government bill has failed to recognised the cultural connection of Aboriginal people to their land. There will be situations where a claimant has not had physical access to the land but still retains the religion, the stories, the knowledge and the traditional law and customs relating to his or her traditional country. We moved an amendment to ensure that that common law right was being protected.With respect to multiple claims, we felt the government went a bit far. They got the balance wrong. Some overlapping claims can reflect traditional law. Traditional law can accommodate groups having a right to traverse the country of others through soul lines and dreaming tracks. Generally, as I say, we think the government's balance was wrong and we think there was inherent unfairness in their winding back common law rights; not just unfairness, but also there would be constitutionality problems involved in it as well.Concerning our position, we put up a proposal which ensured that the registrar was, for instance, not to register an application unless satisfied that the certification was reasonably made by the rep body. We ensured review under the AD(JR). We ensured that there was capacity to uncover situations for instance of fraud in an application, and a whole range of mechanisms which were geared towards ensuring that the process could be somewhat more streamlined and made more sustainable.We also recognise the role of rep bodies—this will be a part of the debate later on. Under the government's proposal, rep bodies would have increased and enhanced roles. We also thought the rep bodies could have a vital role to play, particularly with respect to retrospective reviewing of overlapping claims. We also pursued a provision to ensure that challenges could be made to the Federal Court as to the truth of sworn facts in an application.Priority considerations were reflected in our legislation through amendments which sought to ensure that the registrar would give priority to consideration of claims in relation to areas over which section 29 notices had been given. It goes on, but at the end of the debate, as I said, most of our amendments were not accepted. But we are now confronted with legislation which we have to tackle in a way in which our objective is to state our previous position and also to see whether we can make some gains on what was passed through the Senate last year.The core of the debate here will go as to the threshold test, the registration test. The revised amendments go to this and we maintain that the government's balance between procedural rigour and fairness has not been struck properly. Native title applicants will be required to provide detailed information about the factual basis of the claim. We have no problems with that. Non-native title parties will be entitled to challenge factual assertions in the Federal Court and the registrar must only enter onto the register of claims details of claims and interests which, in the opinion of the registrar, can be established prima facie. That amendment also reflects the amendments moved by Labor in the previous proceedings in December last year. However, the revised registration test does not require native title applicants to meet criteria which have a speculative foundation in the common law. In this way, we believe the government goes too far. It excludes from registration people who might have a firm basis in the common law.We will be moving amendments and I will go to those later during the deliberations in the committee process. I can say at this stage that the government amendments, which I am sure will be moved, are on the whole supported by the opposition, in many instances not because they are the preferred option but because they are incremental gains on the debate last year.We have a number of our own amendments as well. I will go to those when they come up. In essence, the issue as to the threshold test is one that we will have to go to very soon in this debate. We believe there should be reflection of the common law. There should be a capacity, as the government has argued, for a physical connection test. We believe there should be provision for accommodation of those who have been locked off their properties and we also believe that the Mabo test, which is reflected in our amendments—a test which accommodates the common law rights pursuant to traditional association with the land—should be available for people who are making claims and who would otherwise be unjustly denied the capacity to make a claim if that aspect of the common law was not reflected in the legislation.We also believe that these three aspects should be available in the alternative. The government has a different view from that, and I am sure Senator Harradine has as well. I am also sure that we will argue those different aspects out through the course of this debate.13:52:002044Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—The government is moving its own amendments to the registration test, Nos 66 to 76, which are a sign, I think, of our good faith and our willingness to consider propositions put to us and matters that arose out of the Senate deliberations last December. We have not watered the test down, because we think a sufficiently rigorous registration test is vital to the effective operation of the Native Title Act and the ending of the real problem we have across Australia of completing overlapping claims which are causing considerable dissent within Aboriginal communities, let alone in the wider community.In particular, we have considered the misunderstanding about the operation of the prima facie test that was raised in the Senate. There was some fear that every single native title right and interest claimed in any one claim had to pass the prima facie test or the whole claim could not be registered. That was never our intention. To the extent that it could be read as having that effect, we have proposed an amendment to give it the meaning we intended. The amendment says:The Registrar must consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established.The note attached to the amendment says that only those rights and interests that are established are taken into account for the purposes of the right to negotiate. That is what was intended. In other words, if one claim contains 10 native title rights and interests which are sought, and six of those pass the registration test, the claim is registered with respect to those six. Those six are then able to be the subject for consideration in the right to negotiate process but not the four for which a prima facie case could not be made. It does not mean that because four of the rights claimed did not meet the test the claim does not get registered, which was, I think, the misunderstanding on the part of some in respect of the previous tests. So I think that is a clarification which I would hope the Senate should accept.In relation to physical connection, it remains our view that it is not unreasonable to say that for a claim to be registered at least one member of the claim group should have or have had a traditional physical connection to some part of the area claimed. The obverse of that is to say that a claim should be registered even though not one member of the claim group has ever had any physical connection to the land claimed. Remembering that the registration test is about access to all the statutory procedural rights available to registered claimants with respect to future developments, that is not an unreasonable test. To suggest that those significant procedural rights, including the right to negotiate in respect of mining and compulsory acquisitions on 39 per cent of Australia, should be available to claim groups even though not one of them has ever had any connection to the land claimed seems to us—and, I think, to the wider community—a preposterous suggestion.We have changed the way in which the physical connection test is described, with the addition of 7(b), to make it clear that, where just one member of the claim group had had a connection and would have expected to have continued to have that connection but for things done either by the Crown or a statutory authority or any other person, then that will satisfy the registration test. We believe that is an up-front acknowledgment of what may well have occurred in the past, and that is that some members of claim groups may well have had their connection to that land severed by actions of that kind, and they should not be prejudiced in having their claims registered. This takes account of such a situation, but we do not believe that we can go beyond that to another generation and therefore be in a situation where claims are registered even though not one member of what may be a very big claim group has ever had any physical connection to the land claimed.This does not affect the rights of claimants to seek native title determinations before the Federal Court by normal Federal Court action. This registration test, I remind you, is about registration with the tribunal essentially for access to the statutory benefits of the right to negotiate. Therefore, a test of this kind is, we think, perfectly fair and reasonable.13:57:002045Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I would like to make a substantial contribution to this issue. I know we are going to be very close to question time, so perhaps I could make some introductory remarks now and expand on them more fully when we reconvene to look at this legislation.The issue of physical connection test is, to the Greens, one of the most important issues in this bill that we are considering. It is the issue of whether or not the government is willing to accept the spiritual connection that indigenous Australians feel for their land. It is about basic respect and about basic understanding of the culture and spirituality of indigenous Australians who, as I have pointed out, have never ceded sovereignty on their lands.So we are dealing with what is considered by the Greens to be the most important issue. We have had buckets of extinguishment result from the dealing with the bill so far. At the end of last year, we had buckets and buckets of extinguishment. We are dealing with a situation where we are staring at the possibility of blatant disrespect, and the issue is the ability of indigenous Australians to be respected—the kind of respect that has been discussed in relation to the heritage act with the Justice Evatt report, the kind of issue that has not been taken up by the government.Whenever even members of the government talk about the issue of indigenous Australians and the land, they acknowledge the spiritual connection. What I want to know is: if that is acknowledged in just about every speech we hear at public places in various ways, why does it stop short of legislative acceptance? I believe that is impossible to answer. There is no reason why. Many people believe we are getting to the point where the government is going to be asking us to make a decision which, in fact, denies that spirituality. That is why this is going be probably the most important issue, in terms of both gesture and reality, to indigenous Australians—that is, whether or not the spirituality of indigenous Australians is respected.Progress reported.Questions Without Notice204620462046Schacht, Sen ChrisSenator SCHACHT4J4SAALP00—Madam President, my question is addressed to the Minister for Communications, the Information Economy and the Arts. Minister, I refer to your triumphant launch just 12 months ago of the operations of Northgate in Ballarat. I note that at the time the Prime Minister said:This is a very good example of what competition does because, let's face it, a few years ago you wouldn't have even dreamt of this occurring and it's just the advent of competition that has made it possible.Do you agree with the Prime Minister that Northgate is `a very good example of what competition does', given that last week Northgate in Ballarat shut up shop without even informing its customers? Do you concede that the situation in Ballarat indicates that competition is not the most effective way of delivering services to regional and rural Australia? Do you now understand why so many of your more sensible colleagues in the National Party realise that selling Telstra is not welcome in regional and rural Australia?2046Alston, Sen RichardSenator ALSTONLD4VICLPCommunications, the Information Economy and the Arts10—Madam President, I am aware that Northgate has recently announced a change in strategy.4J4SCHACHTSenator Schacht—Oh, ha ha!LD4Senator ALSTON—I thought your question was had they shut up shop and left people high and dry. It is simply not true. Once again, that is fundamentally wrong. I hope you did not mislead Steve Lewis when you told him that you were going to raise this question.The fact is that, from 1 April, Northgate has ceased its local telephony service which had been bundled with pay-TV. As I understand it, they had only a handful of customers on that service. But they continue to provide long distance service offerings and, indeed, the pay television service in Ballarat, and they remain the only regional centre with access to Northgate's very competitive long distance rates. Indeed, had you read the article the other day, you would have seen that Northgate's management was saying that they were astounded at the level of interest in that long distance service. So, quite clearly, Madam President, Northgate is responding to local demand and providing the services accordingly.It is a grotesque distortion to then go on and argue that somehow competition does not deliver new services. This is the Labor Party to a T—`We decide who gets what and where and then we go in and say to the carrier, "Deliver it".' That is the way you would run a telecommunication system, is it? You have got Austar rolling out services in Darwin and Alice Springs; you have got people providing services all throughout regional Australia, but you want to go in there and tell carriers how to deliver and when. It really is getting to a very silly stage.That is why even Kenneth Davidson was mocking your leader this morning. He was mocking him because he knows that if there is one person in this country who has not a shred of credibility when it comes to privatisation it is Kim Beazley. Do you know what Ken Davidson did? He actually rang Mr Beazley's office and asked for any evidence to show that Kim Beazley had ever expressed concerns about privatisation. Do you know what he copped? He got a huge bucket of abuse from Greg Turnbull. That is the way this mob engage in debate; that is the way they justify their position. In other words, Mr Beazley has absolutely no defence at all. He is not interested in the slightest in doing anything other than taking an opportunistic position on the issue.You know as well as we do that it is perfectly sensible to provide cross-subsidies to rural areas underpinned by a universal service levy—indeed, it happens around the world. That is the way you do it. You could go further and legislate; you could have weighted average pricing, as we have got, to ensure that people do get price reductions in rural areas if those price reductions—4J4SCHACHTSenator Schacht—You cannot deliver to the bush; you are not interested in the bush.LD4Senator ALSTON—You are not interested. I don't know why you bother asking questions. You are just talking with your mouth open.Senator Schacht interjecting—LD4Senator ALSTON—You are talking with your brain in neutral, as always. Madam President, all I can say is that Senator Schacht ought to get out to the bush occasionally and see what is really going on. He ought to see how it does work and see why you do get competitive carriers out there. The fact is you have had something like 14 carriers since 1 July last year. Increasingly, you will find that they will deliver niche services and products. Competition is the only way to go. If you think that somehow you are going to legislate and mandate it, I feel very sorry for you.2047Schacht, Sen ChrisSenator SCHACHT4J4SAALP00—Madam President, I ask a supplementary question. Only five days ago, on 1 April, Senator Troeth issued a press release which said:Further evidence of the Coalition Government's support for the development of regional telecommunications is apparent in the emergence of new services for clients such as free local phone calls and cheaper STD rates offered by Northgate communications in Ballarat.It was April Fool's Day. Was Senator Troeth speaking on behalf of the coalition, or was this just a simple April Fool's Day joke? Or was it that Senator Troeth's office issued the press release, written by the government members' secretariat, without checking to see whether Northgate was still delivering the service?2047Alston, Sen RichardSenator ALSTONLD4VICLPCommunications, the Information Economy and the Arts10—The real problem is, Madam President, that Senator Schacht does not understand the difference between fact and fiction. What Senator Troeth was doing—5K4FAULKNER Senator Faulkner—Why do you hate Ballarat so much?LD4Senator ALSTON—Again, that is the level of sensible discussion and debate we get in this country—`Why do you hate Ballarat?' I presume, if that is your top of mind response—and if you know where Ballarat is—you obviously do not feel very warmly disposed towards it. Perhaps you might tell Senator Schacht how services come to be delivered in areas, how you think people offer different prices.Why do you think they offer a range of services? Why do you think new technologies come about? They come about because of competition. Senator Troeth was simply making the point that, if there are demands to be met, if there are services that people want in rural areas, they will get them. But you do not expect a company to go out there and lose money if they are offering a service that no-one wants. And that is what they have done in relation to that. You obviously treat 1 April the same as any other day in the year. (Time expired)Distinguished Visitors204710000PRESIDENTThe PRESIDENT—Order! I draw the attention of honourable senators to the presence in the chamber of the Speaker of the Parliament of Sweden, Madame Birgitta Dahl. On behalf of honourable senators, I have pleasure in welcoming you to the chamber and trust that you will enjoy your visit to this country. With the concurrence of honourable senators, I will invite Madame Speaker to take a seat on the floor of the Senate.UNKNOWNHonourable senatorsHonourable senators—Hear, hear!Madame Dahl was thereupon seated accordingly.Questions Without Notice204720472047Boswell, Sen RonaldSenator BOSWELLYE4QLDNP10—My question is directed to the Leader of the Government in the Senate. As a result of the coalition government's responsible economic management, there are improving signs for Australians seeking work.4J4SCHACHTSenator Schacht—Ask him about telephones.10000PRESIDENTThe PRESIDENT—Senator Schacht, you have had your opportunity to ask a question.YE4Senator BOSWELL—In particular, I refer to the 14.9 per cent increase in ABS job vacancies, the massive drop in small business interest rates and today's ANZ job advertisement figures which show a further rise in March. How is this environment of low interest rates, low inflation and low debt assisting Australian families and small business operators?2048Hill, Sen RobertSenator HILLBH4SALPEnvironment10—Madam President, that is a very good question, and one of the interesting aspects is that job questions are now only asked by the coalition in this place. The issue of unemployment is off the Labor Party agenda, firstly, because they have no policies, and, secondly, because it is embarrassing that the coalition is doing so well.656FORSHAWSenator Forshaw—Oh really?BH4Senator HILL—The Labor Party may not have witnessed it, so I now have the opportunity to remind you. I will remind you of this particular good news. Firstly, last Thursday, the ABS job vacancy figures for February recorded a massive 14.9 per cent increase for February—good news! Secondly, private sector vacancies are now at their highest level since 1979. Between November and February, there was a 61,400 increase in private sector job vacancies. Today's ANZ job advertisement figures show the number of job advertisements to be 18.5 per cent higher than in March of last year.RF4COOKSenator Cook—Off a low base.BH4Senator HILL—The leading indicator on employment, DEETYA, continues to rise, Senator Cook—up 14.1 per cent in the last year. The latest Drake International job survey has found that total employment should grow overall, despite the Asian crisis having an impact in some sectors, with an annualised rate of increase at two per cent. So all the signals are there for increasing employment in this country. That, I remind you, is to be added to the 220,000 jobs that have already been created since the coalition government came to power. So that is good news; that is probably one of the most vital issues facing this country.Why is it occurring? One of the reasons is that we now have the lowest business interest rates in 25 years, giving small business a chance, responding to their needs and enabling them to expand and to grow. I mentioned last week the good news of Westpac bringing down interest rates for small business. I asked that it be followed by other banks, and I am pleased that the Commonwealth Bank has announced reductions in small business interest rates—more good news for Australian business. We would like, of course, to see the other banks do it as well. We estimate that this could be a saving of $300 million a year off the bottom line for small business in this country, giving them again the opportunity to further grow and expand.So what we have been able to deliver for small business is lower interest rates—the lowest in 25 years; what we have been able to deliver for the family is lower housing rates—the lowest in 30 years; and, of course, inflation is now down to the lowest level in 30 years, so that people can retain what they earn rather than lose it as they did during the days of Labor.Just contrast it briefly. Remember the highs of Labor—its great achievements? Small business interest rates—20 per cent; home loan interest rates—17 per cent; one million unemployed—11.2 per cent of the Australian work force. What a contrast with a government that is getting on with the job, getting the fundamentals right, cutting back expenditure and giving small business the chance to grow and expand, which is now resulting in substantial reductions in unemployment and increases in employment. That is good news for Australia.2048Boswell, Sen RonaldSenator BOSWELLYE4QLDNP10—Madam President, I ask a supplementary question. Senator Hill, are you aware of any alternative proposals for job creation, and how do these stack up against the government's policies?2048Hill, Sen RobertSenator HILLBH4SALPEnvironment10—As I said, the Labor Party, two years in opposition, offers no policy alternative.RF4COOKSenator Cook—You are out of order!BH4Senator HILL—Senator Cook presumably read the views of the Age on Saturday. It said:It— That is, Labor—seems to have lost direction and purpose in early 1998.That is spot on. The commentator went on to say:Labor still seems to be on the outrunning tide of policy—away from the things with which it came to be associated in government.Labor does not know which way to turn. Its policies were a failure. It left the incoming government a $10.3 billion deficit. It does not know which way to turn. It has not even started the process of trying to develop itself into an alternative government. But when it does, perhaps it ought to start by concentrating on issues of employment—issues that are important to the Australian people, rather than some of the nonsense that it goes on with. (Time expired)20492049Mackay, Sen SueSenator MACKAY9L6TASALP00—My question is directed to the Minister for Communications, the Information Economy and the Arts. Minister, do you stand by the commitment you gave in order to secure the one-third sale of Telstra that an extra 170 jobs would be created in Tasmania? How do you explain that, prior to the Telstra sale, the full-time staffing level in Tasmania was around 1,500 and that, according to Telstra's own forecast for full-time staff in Tasmania, the staffing level will be around 1,340 by June 1998?2049Alston, Sen RichardSenator ALSTONLD4VICLPCommunications, the Information Economy and the Arts10—I do not have any figures off the top of my head, nor do I—UNKNOWNOpposition senatorsOpposition senators—Ha, ha!LD4Senator ALSTON—Well you are asking me to explain some figure that you say Telstra has—4J4SCHACHTSenator Schacht—It was your promise.10000PRESIDENTThe PRESIDENT—Senator Schacht, cease interjecting.LD4Senator ALSTON—You are asking me about some Telstra prediction of 1,340 jobs. I do not know what that is about. If you want me to find out about it, I will, and I will get back to you.2049Mackay, Sen SueSenator MACKAY9L6TASALP00—Madam President, I ask a supplementary question. The commitment was actually given by you, Minister. Further, isn't it true that, of these 170 jobs, you gave a specific commitment of 30 additional Tasmanian jobs in network construction dealing with the provision of high-tech services to rural areas, with the expectation that these jobs would continue into 1998-99? I quote from your own media release of 5 December 1996, where you said, `As part of Telstra's Australia-wide plan to speed up network modernisation by December 1997, an additional 30 jobs in Tasmania will be created.' Given that these jobs were to be created by December 1997, can you inform us of the progress of this specific commitment of yours?2049Alston, Sen RichardSenator ALSTONLD4VICLPCommunications, the Information Economy and the Arts10—I think if you read the release, you will find that we were in fact repeating what Telstra had informed us. I am not in a position—Opposition senators interjecting—LD4Senator ALSTON—If you think I can make promises on behalf of Telstra, you have another think coming. The board and management of Telstra regard themselves as being not simply the lackeys of government. What we did was that we had discussions with Telstra about their intentions. Indeed, what you said in that supplementary question was that there was an expectation that jobs would continue in 1998-99. That is not our expectation; that is Telstra's expectation. If you want me to tell you what Telstra's current assessment is, I will come back to you on that matter.20492049Macdonald, Sen SandySenator SANDY MACDONALDCX5NSWNP10—My question is to the Minister for Resources and Energy. The minister is well aware of the importance of renewable energy sources. Will the minister advise what measures the government is taking to support research and development for renewable energy sources? How does support for renewable energy research and development under the Howard-Fischer government compare with that of previous governments?2049Parer, Sen WarwickSenator PARERKI4QLDLPResources and Energy10—I would like to thank Senator Sandy Macdonald for that question. The government recognises that renewable energy has a very important role to play in our overall energy mix, and the government is committed to encouraging an expanded commercially viable renewables industry.In November 1997, as part of the $180 million five-year program, the Prime Minister announced a major new package of measures to encourage innovation in the renewable energy sector. These measures include $21 million for a renewable energy innovation investment fund on a two to one funding basis with industry; $30 million of concessional loans and grants for the development and commercialisation of strategically important renewable energy technologies—this represents a huge increase on the $4.8 million over four years spent by Labor; and $10 million for a showcase fund to support leading edge renewable energy projects in areas such as tidal power, solar thermal power and photovoltaics. This is an action oriented program for the renewable energy sector which goes much further than simply encouraging research. It will stimulate innovative technologies and wealth creating business. It will provide many new real jobs for Australians and new export industries to help address Labor's legacy of foreign debt.The Howard government has established a target for electricity retailers and other large electricity buyers to source an additional two per cent of electricity from renewable energy sources by the year 2010. This target will provide significant opportunities for the use of solar, biomass, wind and other emerging technologies. It will also provide its own stimulus for renewables R&D.Never before has the electricity industry been so well placed to look at cost effective markets for renewable energy technologies. Already, over 120 megawatts of electricity capacity has been installed to supply electricity using municipal and agricultural wastes. Many of the newly formed electricity distributors are actively marketing green energy and promoting installation of renewable energy systems.As a result of these initiatives by the Howard government, the level of support for renewables will be considerably greater than that provided by any previous government. Funding for renewable energy in Labor's last budget was estimated at $7.5 million. In 1998-99, the first year of the Prime Minister's climate change package, Commonwealth funding of renewable energy R&D is estimated at $16 million. This represents a massive increase in support for renewable energy R&D and includes measures not even contemplated by Labor. There is little wonder that Labor has nothing to say about renewable energy. Labor failed to produce an integrated renewable energy strategy in government, as in so many other areas. It has done nothing in opposition. It is totally policy free.20502050Carr, Sen KimSenator CARRAW5VICALP00—My question is to the Assistant Treasurer. Minister, are you aware of the resignation of Mr Geoffrey Cousins from the boards of Hudson Conway and Crown Casino, citing irresolvable difficulties he had with the corporate governance of those companies? Are you aware that confidentiality and defamation issues have led to a refusal by Mr Cousins to detail his claims regarding corporate governance against Hudson Conway, with the result that the continuous disclosure requirements of the Australian Stock Exchange and the Australian Securities Commission are not being met? Do you agree with Premier Jeff Kennett that Mr Geoffrey Cousins is just a `boardroom bolter'? Don't you agree with the Australian Shareholders Association that the situation the market finds itself in, with regard to trading continuing in Crown shares but with vital information being withheld from the market, is an absolute disgrace?2050Kemp, Sen RodSenator KEMPWW4VICLPAssistant Treasurer10—Senator Carr has asked a question regarding Crown Casino.AW5CARRSenator Carr—And you know a lot about Crown Casino don't you?10000PRESIDENTThe PRESIDENT—Order! Senator Carr, you have asked your question.WW4Senator KEMP—Senator Carr, just control yourself. We know you have had a very bad weekend. Madam President, if Senator Carr could keep quiet, I will try to answer the question he has posed.AW5CARRSenator Carr—That will be a first.WW4Senator KEMP—Here he goes again. Senator Carr, just contain yourself and you will get an answer. Crown instituted proceedings against the Australian Securities Commission in the Supreme Court in Victoria on 2 March this year. Crown seeks to restrain the ASC from taking any further action in relation to Crown's alleged breach of ASX listing rule 3.1 and Crown seeks damages. Proceedings have also been instituted by Crown against the Australian Stock Exchange.3L6CONROYSenator Conroy—This is about Hudson Conway, not about Crown Casino.Senator Cook interjecting—10000PRESIDENTThe PRESIDENT—Order! There are far too many interjections on my left.WW4Senator KEMP—It is an extraordinary thing: you get asked a question, you stand up and attempt to answer it and then you get a stream of abuse. Senator Cook has bought into it now. Senator Cook, of all people—Senator Cook the books. Just hold on, Senator.ASX listing rule 3.1 requires a listed entity to immediately tell the ASX of any information concerning it that a reasonable person would expect to have a material effect on the price or value of the entity's securities. It is alleged that Crown did not disclose to the ASX until after its $148 million rights issue was completed that it did not propose to go ahead with a second hotel tower and a lyric theatre. The rights issue closed on 4 February 1998. The ASX has commenced an investigation into this matter.RF4COOKSenator Cook—It's Hudson Conway—answer the question.10000PRESIDENTThe PRESIDENT—Senator Cook, cease interjecting!WW4Senator KEMP—Senator Cook has a record of not being able to control himself in this chamber, I have to say. Senator Cook can get out there and abuse all he likes, but nothing will erase that famous quote of his in the Hansard . Nothing will erase that, let me tell you.As I was saying, before I was so rudely interrupted by Senator Cook, the ASX wrote two letters to Crown on 26 February 1998 raising issues about whether proper disclosure had been made by Crown. Crown alleges that the ASX has, by reason of statements in the Australian Financial Review and the letters of 26 February, interfered unlawfully with the trade and business of Crown. The ASX has successfully applied to the court to expedite the matter by having it moved to the court's commercial list. That is the brief I have, and that is the answer I propose to give to Senator Carr.2051Carr, Sen KimSenator CARRAW5VICALP00—My supplementary question to the minister is this: is Mr Geoffrey Cousins, until last week a director of Hudson Conway, Crown Casino, and also a director of Packer media companies, the same Mr Geoffrey Cousins who has a part-time, two day a week, $43,000 a year consultancy to help improve the media performances of ministers? Given the public relations and shareholder difficulties occasioned by Mr Cousins, how can taxpayers be assured that they are receiving value for money for this $43,000 a year? Given the abysmal media performance of ministers, such as yourself, does not Mr Cousins have about as much chance of success with this job as a pigeon in the flames on the banks of the Yarra?2051Kemp, Sen RodSenator KEMPWW4VICLPAssistant Treasurer10—I was waiting for the punch line from Senator Carr and it never came, I have to say. That was the punch line, and that was terrific. Senator Carr, do not worry about the performances of ministers; worry about your own performance when the leader of the Labor Party in Victoria refers to you as a dinosaur. John Brumby refers to you in those terms, Senator Carr, so do not worry about the performances over here. As far as your own party is concerned, you have a lot of ground to catch up.20512051Bartlett, Sen AndrewSenator BARTLETTDT6QLDAD00—My question is to the Minister for the Environment, and it concerns the Port Hinchinbrook development and the spill of thousands of tonnes of dredge spoil. I refer to the science of the debate, particularly to Professor Peter Sanger, whom you employed as the so-called independent monitor. While he may have credentials in broad coastal management issues, why do you have him commenting on the impacts of the acid sulfate problem? Is it not correct that Professor Sanger is not an expert in acid sulfate soil, that he has never won a competitive grant for the study of acid sulfate soils and that, in relation to Hinchinbrook, the Australian Society of Soil Science took the extraordinary step of publicly stating that he was not accredited by their association? Is it not correct that he has already decided there is no apparent damage without doing a full investigation? Is it correct that he is known as a gun for hire by both governments and developers? Finally, is it not correct that developer Keith Williams personally chose Professor Sanger himself and that you caved in?2052Hill, Sen RobertSenator HILLBH4SALPEnvironment10—I suppose senators within the protection of this place can defame professional people, if they so choose, but it does not actually advance the debate particularly far. The honourable senator would, of course, be aware that I answered a similar question in relation to Professor Sanger's qualifications. It was asked of me by Senator Faulkner some months ago, and I refer him to the answer I gave then. He will not find the question particularly helpful, but he will find within the answer the response to a number of the matters he raises.It is important that the event that occurred at Hinchinbrook, which was a slump of one of the spoil ponds during dredging last week, did not have the dire consequence as has been suggested by some. In fact, the information that I have to date—it is to be further investigated—is that the material was not acidic at all. Therefore, the advice that I have received from the Great Barrier Reef Marine Park Authority is that it is not believed to have caused any environmental damage to world heritage values.I understand that the slump that occurred was in fact repaired within three hours, and we have arranged for GBRMPA to inspect it with an appropriately qualified engineer this week to see whether any further long-term work needs to be done. But I remind the honourable senator also that, as of late last year, we were advised that these ponds had been built according to best engineering standards, that they were doing their job properly and that, therefore, there was not a concern. Now there has been a slump. There has been a loss of some material, fortunately not acidic. We do not expect any significant damage to result therefrom but, nevertheless, we want to have the pond walls tested again to ensure that such a slump will not occur again.It is good news to the extent that there has not been any damage caused, which is consistent with the high engineering requirements of this project—some might say more demanding engineering requirements than any coastal development in the history of Far North Queensland. Nevertheless, because it is such an important issue, we will have the wall tested again to see whether any further action should be taken.2052Bartlett, Sen AndrewSenator BARTLETTDT6QLDAD00—I ask a supplementary question. I thank the Minister for his answer. Minister, will you provide details of any information provided by GBRMPA from their further investigations to the Senate to enable us to draw our own conclusions? Could you also confirm the section in relation to my previous question about Keith Williams choosing Professor Sanger personally? Have not hundreds of scientists written privately to express their horror at this development since it was first proposed? Are not good scientists who are national and even global experts in their field being bullied into silence by threats of legal action or even of losing their jobs? Has not this abuse of scientific process been criticised by the Australian Academy of Science? Are not people who are not known experts in the field being used to comment on this development in a desperate attempt to legitimise what the developer and the federal and Queensland governments are doing to destroy the world heritage values of the channel? Are you not aiding and abetting Australia's biggest science cover-up and forcing a process where experts either are not listened to, have their work twisted, or are too intimidated to talk publicly?2052Hill, Sen RobertSenator HILLBH4SALPEnvironment10—I have to say I have rarely heard so much nonsense. This project, as I said, is subject to the most demanding engineering requirements that we are aware of for this type of development. The requirements, I suggest, are in fact a model for other future developments that might occur along the Queensland coast. The purpose is to ensure that the development occurs without environmental damage and, in my particular responsibilities, I am obviously particularly concerned with damage to world heritage values. But the project also has been structured in a way that will ensure there is not damage to other environmental values. With the level of the requirements for testing and checking that are occurring, not only with the independent monitor but also with the on-site supervisor and the whole regime, I think the Australian people can be confident that it is being developed in an environmentally responsible way.20532053Forshaw, Sen MichaelSenator FORSHAW656NSWALP00—My question is directed to Senator Herron, the Minister representing the Minister for Health. Minister, on the weekend the Australian public were treated to the astounding sight of the Victorian Liberal Premier, Jeff Kennett, on the stage at the Victorian Liberal State Council proclaiming that he would campaign against the Prime Minister if the states did not receive extra health funding.Government senators interjecting—10000PRESIDENTThe PRESIDENT—Order!656Senator FORSHAW—Minister, are you aware that Mr Kennett provided advice to you and your colleagues that: `It is essential to get policy right if the politics are to look after themselves'? Minister, are the impending cuts to funding of health services in north and north-west Melbourne the result of federal government recalcitrance or of state government ineptitude?2053Herron, Sen JohnSenator HERRONVW4QLDLPAboriginal and Torres Strait Islander Affairs10—Madam President, this is a rehash of the previous questions in relation to this matter between the state and the federal government, and Senator Forshaw seems to have accepted the state's position on this. I am pleased to read a bit more of the Crowley files, if you like, in relation to the states' position, because Senator Forshaw's question is exactly the same as the questions that were put to Senator Crowley when she represented the health minister.What was more interesting, I thought, was in Friday's press when the Leader of the Opposition, Mr Beazley, announced that the Labor Party had found a health policy. I thought that was absolutely outstanding because for months now I have saying how the Labor Party had no health policy and, in fact, he did find a health policy: he announced that his policy was our policy. He found that he was not going to abolish the $450 incentive for private health insurance.Senator Forshaw should know that the reason that the states are in this difficulty is the tremendous fallout of private health insurance that occurred under his government. For 13 years they attacked the private health care system. Each time the Medicare agreement is renegotiated, all Premiers—and Mr Kennett is not alone in this—come cap in hand to the federal government and ask for more money. But the reality is that there is more money being offered to the states, and Mr Kennett should be aware of that. For whatever reason it is, the Premiers do this. We all know the reason: they want more money, because—as I have said to you before, Senator Forshaw—the states have taken money progressively out of their systems—UI4RAYSenator Robert Ray—Oh, don't accuse them of that. Jeffrey did it!VW4Senator HERRON—Senator Ray, every state has done it and the only state that is making a difference in this regard is my own state of Queensland, which is injecting more money into the system. If Mr Kennett wants to look after the needs of the community he might first consider putting some of the $1 billion back that has been taken out by the Victorian government, Senator Ray.According to the Commonwealth Grants Commission data, Victoria reduced the real level of its own source hospital funding by 23 per cent in 1993-94 and Treasury estimates for 1997-98 suggest that the state even now is spending 18 per cent less in real terms than in 1992-93. So, over the five years the reduction in spending amounts to over $1 billion. I think Mr Kennett needs to go back to the books and have a look at the figures there to show how the reduction in state spending has occurred and not come to the federal government for more funds.2054Forshaw, Sen MichaelSenator FORSHAW656NSWALP00—I ask a supplementary question, Madam President. Minister, you actually conveniently failed to answer that part of the question which referred to the comments of Mr Kennett on the weekend when he said that he would campaign against the Prime Minister if the states did not receive extra health funding. Minister, given that you have just conceded that Mr Kennett was speaking on behalf of all of the state governments, both coalition and Labor, does that mean that, for instance, he is speaking on behalf of Mike Horan, the health minister for your home state of Queensland, when he says that he will campaign against the government? Minister, isn't it the case that your federal government, which claimed to be the saviour of federal-state relations, has completely failed in its duty to the Australian community, which is to work cooperatively with the states to ensure that essential services continue to be delivered?2054Herron, Sen JohnSenator HERRONVW4QLDLPAboriginal and Torres Strait Islander Affairs10—The first point is that I do not believe everything I read in the papers, but I did believe the Sydney Morning Herald today when they pointed out that waiting lists in New South Wales have ballooned out under the Carr government and what a terrible thing it is. So some newspapers I take notice of and I take notice of that today, Senator Forshaw. The second point I would make is that Jeffrey Kennett is an outstanding Premier of Victoria. He has my full support. I think he is quite an outstanding politician.Opposition senators interjecting—VW4Senator HERRON—He plays it hard. I would not respect him if he did not play it hard in this regard to try to get more money for the state of Victoria. When he took over government in Victoria, he inherited a mess similar to that we inherited when we came to power. We inherited a $10½ billion deficit when we took over from Labor. Mr Kennett inherited a similar situation when he took over from Labor in Victoria. I support Jeffrey Kennett. I think he is a great Premier.20542054Harradine, Sen BrianSenator HARRADINE6H4TASIND00—My question is to the Leader of the Government in the Senate representing the Prime Minister. Minister, you would be aware that the bilateral agreement between the PRC and Australia relating to intercountry adoption has not been signed, although there has been seven years of negotiation, and despite the fact that there was an agreement in principle last year. Could the minister please explain to the Senate why there has been a continuing delay in this very important humanitarian project on which the Chinese government is keen to see the agreement take place? Could the minister please explain when the agreement will be signed?2054Hill, Sen RobertSenator HILLBH4SALPEnvironment10—I acknowledge Senator Harradine's ongoing interest in this matter as a result of an earlier question he asked and, in fact, my interest in the subject matter as well. I had discussions with the Chinese Ambassador to Australia and also with the Victorian minister responsible for negotiating the bilateral agreement. I acknowledge that progress in this matter has been very slow. Whilst it is still not finalised, I am, however, able to tell Senator Harradine that progress is being made. Senator Harradine is aware of the fact that adoption matters are the responsibility of states and territories. This agreement is, as I said, being negotiated by the Victorian Department of Human Services in line with the resolution of the community services ministerial council. The major issue to be resolved in the establishment of an intercountry adoption program with China is the automatic recognition of Chinese adoptions by Australia. There is no consistent legal mechanism in the states and territories for the automatic recognition of overseas adoptions. Under current arrangements, a child entering Australia after being adopted overseas comes under the provisions of the Immigration (Guardianship of Children) Act until such time as the adoption is formally recognised by a state or territory court. Whilst that has been a satisfactory arrangement for other countries, Senator Harradine, the view of the Chinese government is that it is insufficient and that they need an automatic recognition of the adoption process that has taken place in China. The matter could have been resolved through the ratification of The Hague convention by both Australia and China, as parties to the convention are obliged to recognise adoptions made in accordance with its arrangements. But as China is not expected to ratify the convention for some time, we have looked at other ways to progress the matter. We have agreed that the Australian laws should now be amended to allow for the automatic recognition in Australia of foreign adoptions from prescribed countries where a bilateral agreement has been made with Australia. We will introduce this bill into the parliament in the next session, Senator Harradine. I trust that the parliament might be prepared to deal with it in the one session so we can put it into effect. That will enable finalisation of the bilateral agreement with China. The effect will be that the arrangement under the bilateral agreement will, in addition to the law, have the effect of recognising the adoption that had taken place in China. There will then be in place an arrangement for ongoing adoption of children from China under this process. It has been frustratingly slow, but I am pleased that progress is now being made. I trust that it can be brought to a conclusion within the next few months.20552055Conroy, Sen StephenSenator CONROY3L6VICALP00—My question is to Senator Kemp, the Assistant Treasurer. Minister, can you confirm that your new anti-dividend streaming provisions will not apply to differential dividend amounts paid to different classes of shareholders providing they all receive franked dividends? If so, will it still be possible for a trust holding one class of shares to receive a disproportionate amount of dividends relative to other classes of shareholders providing both classes of shareholders receive franked dividends?2055Kemp, Sen RodSenator KEMPWW4VICLPAssistant Treasurer10—Senator Conroy raises the issue—AW5CARRSenator Carr—Answer the question!10000PRESIDENTThe PRESIDENT—Order! Senator Carr, only a matter of seconds had passed when you shouted out for an answer to the question. I would ask you to abide by the standing orders and observe them.WW4Senator KEMP—Senator Conroy asked a question relating to franking credit trading and dividend streaming measures. It was a question that was a technical question.4J4SCHACHTSenator Schacht—You're stuck!WW4Senator KEMP—No. I plan to take it on notice and provide him with a detailed answer as soon as practicable.2055Conroy, Sen StephenSenator CONROY3L6VICALP00—Madam President, I ask a supplementary question. Minister, you might want to get an answer to the following question also. Are you aware that the Australian tax office in evidence presented last Friday confirmed that dividend streaming is something indulged in predominantly by high wealth individuals? Isn't it a fact that the $2 million minister for coal, Senator Parer, is a high wealth individual and therefore the AQRM trust which holds just one H class share in QCMM Pty Ltd is nothing more than a tax avoidance vehicle for Senator Parer and his wealthy mates to stream a disproportionate amount of franked dividends to just in order to avoid tax?LD4ALSTONSenator Alston—On a point of order, Madam President: that could in no shape or form be described as anything other than a cheap attempt to abuse Senator Parer and to diminish his reputation under the guise of asking a question. It has nothing to do with Senator Kemp's area of responsibility. It could not possibly bear on that and it certainly does not arise from the original question.5K4FAULKNER Senator Faulkner—Madam President, on the point of order: Senator Conroy asked Senator Kemp as Assistant Treasurer a general question about the anti-dividend streaming provisions and Senator Kemp apparently could not answer it.WW4KEMPSenator Kemp—I haven't had a chance to!5K4FAULKNER Senator Faulkner—You took it on notice, Senator Kemp. Senator Conroy is asking now the specific application of the general question in relation to Senator Parer's tax avoidance vehicle. I submit to you that it is in order. 10000PRESIDENTThe PRESIDENT—Order! Senator, you are debating the issue. You are going beyond taking a point of order.LD4ALSTONSenator Alston—Madam President, I have a point of order on what Senator Faulkner has just said as well as on Senator Conroy's question. I would have thought it was crystal clear that they are both trying to slur Senator Parer's good name. They are not allowed to do that, to make personal reflections. This is simply a vehicle for alleging that Senator Parer has been guilty of some underhand practice and that his taxation affairs are such that he ought to be ashamed of himself. That is the way that is put. That is a personal reflection. It is highly disorderly and it ought to be ruled out of order.10000PRESIDENTThe PRESIDENT—Senator Faulkner, there was an imputation against a senator in the remarks you made in speaking to the point of order that you ought to withdraw. I would ask you to do so.5K4FAULKNER Senator Faulkner—Madam President, I will withdraw it if that is case. I do not believe that is the case, but if you so rule I will withdraw it.10000PRESIDENTThe PRESIDENT—Thank you. Senator Kemp, if there is anything within that question that you regard is within your portfolio, you may deal with it.2056Kemp, Sen RodSenator KEMPWW4VICLPAssistant Treasurer10—There are two points I would like to make in reference to the question by Senator Conroy. If he wants to make those comments, Robert Ray used to have a rule—this was the Robert Ray of old, not the current sleaze maestro of the Labor Party—10000PRESIDENTThe PRESIDENT—Senator, withdraw that word.WW4Senator KEMP—Senator Ray used to say that there are 10 yards to courage, Senator Conroy. If you have got those sorts of comments you want to make against a colleague, you walk outside and you make them. Do not use coward's castle. That is the first point I make.The second point I make, Senator Conroy, is: in relation to franking credit trading and streaming, the Labor Party took no action in this particular area. It is this government which is taking the action.20562056Tierney, Sen JohnSenator TIERNEYO15NSWLP10—My question is to the Minister for Communications, the Information Economy and the Arts. Minister, does the media have a responsibility to report sensitive issues, such as the Wik debate, with accuracy and sensitivity?2056Alston, Sen RichardSenator ALSTONLD4VICLPCommunications, the Information Economy and the Arts10—I think all Australians should be rightly concerned about the standard of reporting of the current native title debate. A particular concern is the loose way in which many journalists report the likelihood of a double dissolution election in the event of the rejection of the Native Title Amendment Bill. As an example, today's ABC main morning radio news led with the following: `Debate on the Wik bill continues in the Senate today with a race based election looking increasingly likely.' This type of reportage is based on a series of political presumptions and value judgments, not on facts. It implies that the rejection of the government's Native Title Amendment Bill inevitably means that the next election will be fought on race issues, an expression which has increasingly become code for racial abuse with an additional connotation that such an outcome would be the fault of the government.UI4RAYSenator Robert Ray—Who wrote this rubbish?LD4Senator ALSTON—I know you think it is all rubbish, but just listen. Race is a sensitive issue in Australia. The point is underlined by Gareth Evans's mealy-mouthed refusal in the House earlier today to apologise for, let alone withdraw, his grossly insulting and totally inaccurate racial slur against the Prime Minister.Australians rightly value our reputation for inclusiveness, for extending open arms to the peoples of the world. They also rightly value the efforts made by this government and previous governments to provide a helping hand to the nation's indigenous people so that they can overcome the disadvantage and repression they have suffered in the past. There has been and will continue to be a legitimate political and social debate about how to improve the welfare of indigenous Australians. This debate should never concentrate on the issue of race alone.5K4FAULKNER Senator Faulkner—On a point of order, Madam President: given this was directed to Senator Alston in his capacity as the minister for communications, I ask you what this sanctimonious hypocrisy from Senator Alston has to do with his portfolio.10000PRESIDENTThe PRESIDENT—Senator Alston?5K4FAULKNER Senator Faulkner—No, I am asking you.10000PRESIDENTThe PRESIDENT—He is entitled to speak to the point of order.5K4FAULKNER Senator Faulkner—He was not on his feet. He did not ask to speak to it. You just invited him to.10000PRESIDENTThe PRESIDENT—It was certainly my impression that he was rising.5K4FAULKNER Senator Faulkner—He didn't.LD4Senator ALSTON—I am. There is no time limit on taking points of order and I am taking a point of order. Do you mind?5K4FAULKNER Senator Faulkner—Not because you are on your feet—it's an abuse.LD4Senator ALSTON—Madam President, I would have thought it was most important to be able to ask a question about the approach that the government ought to take to the responsibility of media reporting to the extent that government's policy affects that area and to the extent that government's policy might affect it. It is directly relevant. It is a crucial policy issue in this country to know what attitude the government takes to what is said in the media, the way in which the media is portrayed and those who seek to perpetrate their own canards. That is precisely what this question is doing.5K4FAULKNER Senator Faulkner—Madam President, further to my point of order: having had that pathetic explanation from Senator Alston, I do not believe it is proper for you to invite Senator Alston to address my point of order when I am directing my point of order for ruling by you. Senator Alston was not on his feet. He was not seeking the call. I do consider in that circumstance it is a matter for you to make a ruling. I request you do make a ruling on my point of order and you rule in favour of it.7E4VANSTONESenator Vanstone—Madam President, on the point of order: I invite you to consider the number of occasions during today's question time that you have had to call Senator Faulkner to order and he has chosen to ignore it. If someone complained about that to you, you would rightly say that you allow some leniency in the to and fro of debate and you want the debate to flow freely. On that basis, I put it to you that, when someone raises a point of order on a question to a minister, you are perfectly entitled to invite the minister's view before making a decision. If there is anything that you should not put up with, it is Senator Faulkner sitting in his chair disputing your rulings as you are in the process of properly conducting order in the Senate.10000PRESIDENTThe PRESIDENT—Order! There have been several matters raised in the last few minutes. In relation to the question put to Senator Alston, to the extent that it is within his portfolio, he can answer it. He should not stray outside of that in doing so.N26ABETZSenator Abetz—Madam President, I raise a point of order. It is against standing orders to refer to another senator as being hypocritical or as being a hypocrite. In Senator Faulkner's initial point of order, he made direct reference to Senator Alston's answer as being `sanctimonious hypocrisy'. With great respect, if Senator Faulkner was genuinely concerned about the application of standing orders, he would voluntarily withdraw that comment.10000PRESIDENTThe PRESIDENT—I will check the Hansard . I did not hear the remark.LD4Senator ALSTON—I think it is very important to understand that in this country we do not dictate to the media, we do not regulate them and we do not tell them what to say. But what follows from that—Senator Schacht interjecting—LD4Senator ALSTON—You may have a different policy approach. What follows as far as we are concerned is that there is a great sensitivity that needs to be recognised. The media and media organisations have an obligation, which is well understood in a democracy, to treat issues with great sensitivity, particularly ones as sensitive as the Wik issue. That the Deputy Leader of the Opposition is running around the country doing his best to raise the temperature in a thoroughly unacceptable and un-Australian manner is an issue that is of great concern to the population of Australia and raises concerns about the way in which the media operates. Mr Gareth Evans was at it again on regional radio this morning.Senator Robert Ray interjecting—LD4Senator ALSTON—I know why you dumped him, Senator Ray. I know why you dumped him a few years ago—because you could not control him. He cannot control his own tongue. It is a matter of great concern to all Australians that Mr Evans should be on regional radio, unable to help himself and simply compounding the felony. The ABC is an independent organisation which sets—5K4FAULKNER Senator Faulkner—Madam President, I raise a point of order. How can the remarks that Senator Alston has been making for the last minute or so be within his area of portfolio responsibility? I ask you to consider that. I still await a ruling on the other part of my point of order, which related to your calling Senator Alston when he was not seeking the call.10000PRESIDENTThe PRESIDENT—That is a matter on which we will have to differ, Senator. I thought he was starting to rise in his place and I called him. It is a matter of a difference of view between us as far as that is concerned.LD4Senator ALSTON—Madam President, I raise a point of order. I simply put this to you: Senator Faulkner is essentially saying that, if he has a point of order, you should not hear any contrary view; you should simply agree with him. You should not allow the opposing viewpoint to be expressed. That's really what he is on about, and you quite rightly, I think, ruled that it is proper to hear both sides before you rule.10000PRESIDENTThe PRESIDENT—Order! There is a point of order on which I have not ruled now. Minister, in answering this, I would ask you to keep within the bounds of your portfolio responsibilities. LD4Senator ALSTON—I was simply in the process of saying that the ABC is an independent organisation which sets its own editorial standards. That is very much a matter within my own responsibility but the ABC, as a national broadcaster, along with all media outlets, has a responsibility to all Australians to report this debate fairly and accurately and not simply recycle Labor's slogans.20582058Faulkner, Sen JohnSenator FAULKNER5K4NSWALP00—My question is directed to Senator Hill, the Minister representing the Prime Minister. Minister, are you aware of media reports today that cabinet has rolled the Prime Minister on the issue of blind trusts for holding ministers' private interests, allegedly on the venal grounds that current ministers would lose too much money in stamp duty and capital gains tax liability? Now that the Australian public are aware that the Prime Minister's attempt to avoid ministerial conflicts of interests through blind trusts was knocked over by ministers' greed, and his attempt to regulate through the code of conduct was knocked off by ministers' unwillingness to comply and his own inability to enforce, I ask: does the Prime Minister have a third-best option to avoid ministerial conflicts of interest?2058Hill, Sen RobertSenator HILLBH4SALPEnvironment10—I understood that the Labor Party was opposed to blind trusts in these areas, but if the Labor Party has changed its mind and it is now in favour of blind trusts, I should perhaps pass that message back to the Prime Minister. If that is now Labor's preferred way of dealing with this particular issue, that is useful information. If, on the other hand, it is just a further demonstration of the confusion on the part of Labor, that will not surprise us either. As they go about the task of trying to develop policy, the confusion we have seen in relation to tax policy; Mr Gareth Evans suggesting, perhaps, that there could be death duties one day, for example; other alternatives being put down; the confusion that we have seen in relation to the development of health policy—RF4COOKSenator Cook—You are running away! Why don't you face the question?BH4Senator HILL—What I am saying, Senator Cook, is that this is a further demonstration of a failure on the part of the Labor Party to reach a final considered position on even one issue, including this. The government did at one stage consider the issue of blind trusts but decided not to proceed with it. If, however, the Labor Party is suggesting that that is a better cause of action, I will pass that message back.2059Faulkner, Sen JohnSenator FAULKNER5K4NSWALP00—Madam President, I ask a supplementary question. As a matter of fact, Minister, what the Labor Party thinks is that Mr Howard should enforce his own code of conduct. That is what we believe.LD4ALSTONSenator Alston—Madam President, I raise a point of order. This is question time. It is not an opportunity for Senator Faulkner to get up and tell us what the Labor Party believes—as if anyone would be interested; as if anyone would believe what Senator Faulkner had to say. It is not a question in any shape or form and you ought to rule him out of order.10000PRESIDENTThe PRESIDENT—There is no point of order but you should come to the question, Senator Faulkner.5K4Senator FAULKNER—Isn't the key issue with the code of conduct your party leader's willingness or otherwise to enforce its provisions? On that criterion alone, don't you think that your leader, the Prime Minister, John Howard, has failed miserably?2059Hill, Sen RobertSenator HILLBH4SALPEnvironment10—No Prime Minister has enforced a code of conduct more rigorously than this Prime Minister.Opposition senators interjecting—BH4Senator HILL—The Labor Party was not even prepared to publish its code of conduct. What we do know with certainty because of Mr Keating's piggery interests is that he was not even prepared to enforce his unpublished code of conduct. So when the Labor Party gets its own house in order in this regard, perhaps it might be a in a better position to criticise others.20592059Lees, Sen MegSenator LEES8U4SAAD00—My question is to Senator Herron, the Minister representing the Minister for Health and Family Services. Is the minister aware of continuing newspaper reports about the thousands of Australians who are privately insured but who are choosing to use the public hospital system as public patients—in other words, not admitting to having private health insurance? Do you agree, Minister, that they are simply exercising their right as taxpayers to use the public system? But, Minister, is it not further evidence—the reluctance to actually admit to being privately insured—that the $1.7 billion you put into private health insurance would have been far better spent in the public hospital system?2059Herron, Sen JohnSenator HERRONVW4QLDLPAboriginal and Torres Strait Islander Affairs10—The answer to the first question is yes. They are exercising freedom of choice and they have always done that. In fact, for as long as I can remember that has been going on. You might even call it reverse cost shifting in so far as the states retaliate by sending the patients to get their X-rays done and their prescriptions filled outside the public hospital system, so it is sort of tit for tat in a sense. It has been investigated by the state governments, I know in my own state, to see to what extent it is.I know that you are probably referring to your own state of South Australia, but there are different situations particularly in Queensland, for example, where you have to differentiate between what occurs in the cities and what occurs in the rural areas, where often the private beds are used, and whether they are private or public really does not matter; whereas in the cities—certainly in Queensland—the private hospitals are entirely physically separated from the public hospitals. In some other states the private patients go into the public hospitals, such as in New South Wales, and are designated whether they are public or private.So there is validity to the arrangement, but it is really a twofold argument. The private hospitals, on the one hand, have to lift their game and the private practitioners have to lift their game so that they can attract patients to the private hospitals; on the other hand, the public hospitals have to lift their game because they have to become more efficient. Everybody knows that the cost of running a public hospital bed is much higher than a private hospital bed, so when these private patients do elect, as is their right, to go into a public hospital, they cost the public purse more because of the cost of that occurring. So it is an argument both ways.But whether or not it is a major argument in relation to the quantum of money that goes across, I do not believe it is because there are not a huge number of people who do this. I found in my own state, for example, after surveying it, that it was not a matter of cost, it was a matter of choice of those people who elected to do that for whatever reason. We never really got to the bottom of it. Usually, it was an association with the hospital where they had been to as a patient before, they were happy with the service that they got, and they came back—but they privately insured so that they could have that safety net so that if ever they had a catastrophic illness where they wanted to go to another hospital and seek private care then they could do so.The government is addressing this particular problem, as you know, because we have already promoted it and the bill has been prepared to allow hospitals to contract with doctors. I think that it was in Victoria that it has been done in relation to obstetricians, where the patients can be guaranteed that there will be no out-of-pocket expenses, because that is another—LI4PATTERSONSenator Patterson—It was in Victoria.VW4Senator HERRON—Yes, I think it was in relation to obstetrics where, with National Mutual, agreements were to be reached where the patients could be guaranteed that there would be no out-of-pocket expenses. The idea behind this is to overcome that particular problem where patients are concerned about out-of-pocket expenses.Often you will find that the patients that go into the public hospitals do so for major things like hip replacements or coronary bypass surgery which are extremely expensive and for which there are long waiting lists. They put up with the waiting lists, and that is the quid pro quo: if they are privately insured they can get into a private hospital a lot more quickly as long as they are prepared to have a certain quantum of out-of-pocket expenses; or they can wait, and usually that occurs with hip replacements where they can wait for a public hospital system bed and keep their private insurance as a safety net.2060Lees, Sen MegSenator LEES8U4SAAD00—Madam President, I ask a supplementary question. I thank the minister for his answer. Certainly, gap payments are the biggest problem, but the states now seem to be suggesting that, Minister, this is running into the hundreds of millions of dollars, not the tens of millions as previously, and that the number of people now choosing not to admit that they are privately insured is growing. I ask: as you are negotiating with the states—which presumably is still going on behind the scenes—are you not just looking at the number of people that drop out of private health insurance but also at the number of people that are choosing not to use their private health insurance?2060Herron, Sen JohnSenator HERRONVW4QLDLPAboriginal and Torres Strait Islander Affairs10—It is hard to get accurate figures in relation to this from the states. In fact, it is extremely difficult in some states because people do not tell, so you cannot get accurate figures. They go to a public hospital, don't say that they have got private health insurance and so the hospital has no knowledge of whether or not they are privately insured. This is a good argument for the states to bring up.656FORSHAWSenator Forshaw—That's rubbish!VW4Senator HERRON—Senator Forshaw said it is rubbish. That shows how ignorant he is of it. When have you last been in a public hospital, Senator Forshaw? Senator Forshaw has private health insurance, Madam President, so he has probably never been there. This is an argument that the states are trotting out to bolster their position. But there are no accurate figures on it and it does not bolster that because, as you know, we have guaranteed under the health agreements that as each two per cent drops out of private health insurance we will put another $83 million into the pot—which the Labor Party never did.Senator Crowley interjecting—VW4Senator HERRON—It was in the previous Medicare agreement that Senator Crowley was aware of, but they reneged on the agree ment—they never put the money in. (Time expired)BH4HILLSenator Hill—Madam President, I ask that further questions be placed on the Notice Paper .Questions Without Notice2061206115:06:002061Parer, Sen WarwickSenator PARERKI4QLDLPResources and Energy10—Last Thursday, 2 April, Senator Murphy asked me a question in regard to the Anti-Dumping Authority's inquiry into wood-free coated paper from a number of countries. He also asked me a supplementary question. I seek leave to incorporate the detailed answer given to me by the Minister for Customs and Consumer Affairs to both the original answer and the supplementary. I seek leave to have it incorporated in Hansard .Leave granted.The document read as follows—Question:Minister [Parer] can you tell the Senate whether the Minister for Customs will reject the ADA's finding that the amount of paper dumped by Belgium, France, the Netherlands, Switzerland and Taiwan is negligible because, according to the ADA, it constitutes only seven per cent of the total Australian import volume? Will the Government instead commit to imposing anti-dumping duties upon the relevant companies upon the grounds that no level of dumping is acceptable when people's jobs are at risk?Answer:This question relates to the Anti-Dumping Authority's Inquiry into woodfree coated paper from a number of countries. The Anti-Dumping Authority announced on 1 April, by Notice published in the Financial Review, that it had terminated the inquiry into coated paper from Belgium, France, the Netherlands, Switzerland and Taiwan as the total volume of exports from these countries was no more than 7 per cent of the total Australian import volume over the period of the period.Under subsection 7B(3) of the Anti-Dumping Authority Act 1988, the Authority must terminate an inquiry if it finds that dumped exports from a particular country represent less than three per cent of total imports of the goods under inquiry or if exports from countries, whose individual share of imports are less than three per cent, when combined are seven per cent or less. The Authority has found that dumped imports of coated paper from Belgium, France, the Netherlands, Switzerland and Taiwan, when combined, represent no more than seven per cent of total imports. In fact, they only represent about three per cent, which equates to some two per cent of the Australian market.If the Minister for Customs and Consumer Affairs were to act as suggested by Senator Murphy, he would be acting contrary to legislation enacted by this Parliament and contrary to Australia's obligations under the WTO Dumping Agreement. Clearly, in view of both of these points, the Minister should not and cannot so act.In 1994 Australia, along with many other countries, became a signatory to the WTO Agreements. One such Agreement under the banner of the WTO is The Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994—commonly referred to as `the Dumping Agreement'.Article 5.8 of that Agreement states:'. . . an inquiry shall be terminated immediately in cases where the authorities determine that the volume of dumped imports. . . is negligible'.The Agreement goes on to say that, in this context, `negligible' means that the volume of dumped goods from a particular country is less than 3 per cent of total imports of those goods into a Member country or, where several countries have less than 3 per cent of such imports, their combined share does not exceed 7 per cent of imports.Article 18.4 of the Dumping Agreement requires that signatories shall take all necessary steps to ensure that their domestic laws and regulations conform with the provisions of the Agreement. In response to this Article the then Government introduced a Bill into this Parliament in 1994 to amend the relevant Acts dealing with anti-dumping matters. The Bill was passed by both Houses and the amended legislation took effect from 1 January 1995.One such amendment was the introduction of a new section into the Anti-Dumping Authority Act 1988 section 7B. Subsection 7B(3) states that the Anti-Dumping Authority must terminate a dumping inquiry if it finds that the volume of dumped goods is negligible. The definition of `negligible' is to be found in section 269TDA of the Customs Act 1901 but, for practical purposes, is essentially identical to that contained in the Dumping Agreement as explained above.If the Authority finds that the criteria applying under subsection 7B(3) of its Act apply in a given case, the Parliament has decided that the Authority is to terminate the inquiry with respect to the exporters in question. My advice is that such termination is mandatory (the Authority has no discretion in the matter) and has not issued powers to the Minister to overturn the Authority if it so acts.Against this background, it is obvious that the Minister cannot overturn a decision by the Authority to terminate an inquiry. If he were to do so, he would clearly be acting contrary to law, contrary to the Dumping Agreement and in contempt of this Parliament.These were amendments proposed by the then Government, the Labor Party, and if Senator Murphy has a problem with the fact that the Authority must terminate the inquiry then he should ask his colleagues, Senators Schacht and Cook who were the relevant Ministers at the time.Let me reiterate that the legislation is quite clear and unambiguous on the division of power for terminating inquiries and where the Authority is authorised to terminate, the provisions are mandatory. The Minister has no authority in this matter.There is another feature of both Australia's legislation and the Dumping Agreement that would prevent the Minister imposing measures on the basis suggested by Senator Murphy. Before the Minister can impose dumping duties on future exports of a particular product, he must be satisfied—in accordance with subsection 269TG(2) of the Customs Act 1901—that dumping has caused or threatens to cause material injury to the Australian industry producing like goods, and that there may be future exports that may be dumped. This requirement has been reflected in Australia's anti-dumping legislation for decades and is also contained in the Dumping Agreement.There is no scope for the Minister to impose anti-dumping measures on the ground that `no level of dumping is acceptable' as suggested by Senator Murphy. This is not an adequate basis in law, nor in terms of Australia's international obligations, for imposing such measures.QuestionMadam President, I ask- a supplementary question. Minister, I thank you for the part answer that you gave, but you did not really address the question with regards to whether or not the government will reject the ADA findings and impose any duties. I guess that is part of the problem. I wonder whether or not the Minister is going to tell the workers at the Wesley Vale paper mill in Tasmania that the loss of their jobs on the basis of a result of a so-called negligible amount of dumped paper is an acceptable price to pay for the Government's failure to introduce legislation to improve the anti-dumping laws of this country. Is this just not another example of the long list of the non-core promises for which Australians again must pay? AnswerOn 25 February the Ministers for Industry, Science and Tourism and Customs and Consumer Affairs announced that there would be a comprehensive reform of Australia's anti-dumping and countervailing duty mechanisms. Under the new arrangements, interim duties can be imposed after 60 days, the time taken to reach a final finding will be reduced to 155 days and the Anti-Dumping Authority will be abolished. These reforms will give Australia the fastest anti-dumping arrangements in the world. Draft legislation to implement the new arrangements is expected to be introduced into Parliament in the May budget session with a commencement date of 1 July 1998.206215:07:002062Schacht, Sen ChrisSenator SCHACHT4J4SAALP00—I move:That the Senate take note of the answers given by the Minister for Communications, the Information Economy and the Arts (Senator Alston), to questions without notice asked today.In moving to take note of his answer, I want to point out that this minister now has a large amount of egg all over his face. It is just over a year ago that he and the Prime Minister conducted the inaugural telephone call for Northgate in Ballarat. During that telephone conversation, which was on 13 March 1997, Senator Alston told the Prime Minister:. . . courtesy of Northgate Communications who are offering some very exciting telephone arrangements including free local phone calls, which is an Australia wide first, and very significant discounts on a range of other products . . . So there it was: the minister was skiting to the Australian public and to the Prime Minister that this new arrangement would provide free phone calls in Ballarat, in what is called the `local loop', to people who signed up. In the subsequent conversation, the Prime Minister was enthusiastic in endorsing these remarks by Senator Alston and in saying how good Northgate was for providing local loop free calls in Ballarat.During the 12 months since March last year, the Minister for Communications, the Information Economy and the Arts (Senator Alston) has got up in the Senate on a number of occasions and said, `This is our policy. It is working to provide free local calls in regional Australia. This is a first. This is a credit to our policy.' He was also saying, `Therefore, you don't need to have a commitment by Telstra and others to provide a range of services because competition will be provided by these new carriers coming into regional areas.'I do not want to take too much of the Senate's time, but I want to point out that, on 20 March last year, Senator Alston said in the Senate:. . . and I suppose the reason we keep talking about Ballarat is that I happened to go there last week and launch this new product. In many ways it is a typical example of how, all of a sudden, Ballarat seems to be the testbed for regional Australia, when maybe six months ago you would have said, `Well, the bush is going to be left behind.' All of a sudden they are going to be the only people in Australia who will have free local calls to Northgate customers, and suddenly there is the prospect of untimed local calls between Ballarat and Melbourne, which is about 130 kilometres. So I would hope there will be a lot more pleasant surprises in terms of competition in the bush.During the last 12 months, every chance he has had, this minister has trumpeted in this place, in Senate estimates and in media interviews free local calls in Ballarat by Northgate as justification for his policy to deliver to the bush.Last week in Ballarat, Northgate made it quite clear that local calls will no longer be free when they suddenly ceased the service. Today, when I said in my question that Northgate had left the local consumers with no service and with no notice, the minister said in his answer that I had that wrong. On 2 April—the day after April Fools' Day—the Ballarat newspaper said:Northgate customers who contacted The Courier yesterday said they had signed up an unlimited number of local calls for $10 a month, but the special telephone supplied with the service had not worked for about a week.Mr Buddemeyer said local customers had been informed of the closure and service cancellation but Northgate customers denied the claim.Northgate customer Stephen Densley said he discovered Northgate's Sturt St office had closed yesterday when he went to query a bill. Mr Densley said his free local call service had only worked sporadically but two weeks ago it had stopped working altogether.He said he had not been informed of the service cancellation or office closure.There we have it: a clear-cut case that this company has closed down the service to customers. Why didn't we get a comment from the minister today in answering the question about the government's vaunted new customer service guarantee? Is that worth an investigation? Should Mr Densley get a rebate from Northgate because of the lack of service? Nothing from this minister. Today we exposed how the minister has misled the Australian public, particularly regional Australia. They will not get free local calls. The only way they will get a decent service is through Telstra. (Time expired) .15:12:002063Patterson, Sen KaySenator PATTERSONLI4VICLP10—It seems amazing to me that Senator Schacht has got up; we do not hear from him much on telecommunications issues. While the Labor Party picks over various minuscule issues, we now find Senator Schacht talking about Ballarat.4J4SCHACHTSenator Schacht—Not minuscule in Ballarat.LI4Patterson, Sen KaySenator PATTERSON—It is interesting that, while no senators from Victoria are taking up the issue, Senator Schacht is. One would think that thousands upon thousands of people in Ballarat were affected by the Northgate issue. Yes, of course they have closed down that service, but I have been advised that it affects 50 people. What they are doing is keeping their long-term—4J4SCHACHTSenator Schacht—Alston said this was the revolution in telecommunications.10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Order, Senator Schacht! Please proceed, Senator Patterson.LI4Patterson, Sen KaySenator PATTERSON—I am advised that they are keeping their long-distance telephony service, which will advantage people in Ballarat so that they are able to access long distance telephony.4J4SCHACHTSenator Schacht—Why was the Prime Minister talking about free local calls a year ago? LI4Patterson, Sen KaySenator PATTERSON—I thought Senator Schacht had his opportunity to speak for five minutes. If he wants to get up—7E4VANSTONESenator Vanstone—On a point of order, Madam Deputy President: I rise to support you in the order you made only two minutes ago that Senator Schacht had had his say and that he should now desist from interjecting. It seems that, despite the fact you warned him only two minutes ago, he is back at it again.10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Thank you. I have not warned him. But, Senator Schacht, I would ask you to refrain from interjecting. Thank you.LI4Patterson, Sen KaySenator PATTERSON—Clearly, it is disappointing to see Northgate withdraw from the local call market, but this is a commercial decision which is driven by the small number of customers. Northgate advise that their decision has had no direct employment—4J4SCHACHTSenator Schacht—Twelve months ago free local calls were the best thing since sliced bread.10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Order! Senator Schacht!LI4Patterson, Sen KaySenator PATTERSON—Northgate advises their decision has had no direct employment effects. Affected employees have been offered re-employment and technical staff will remain in Ballarat. Customers concerned remain Telstra customers for local call purposes.4J4SCHACHTSenator Schacht—Telstra customers!10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Order!7E4VANSTONESenator Vanstone—That is four.LI4Patterson, Sen KaySenator PATTERSON—Senator Schacht ought to think about what Labor did and what its record is with regard to regional Australia.Senator Schacht interjecting—Senator Vanstone interjecting—LI4Patterson, Sen KaySenator PATTERSON—I actually thought I had the floor.10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—You have the call, Senator Patterson, but between Senator Vanstone and Senator Schacht I am having difficulty. Could I have some order from both sides, please.LI4Patterson, Sen KaySenator PATTERSON—Thank you, Madam Deputy President. Labor ignored regional Australia for almost 13 years. Only at the end of their 13 years in office did they have any interest in regional Australia. They cobbled together policies that were borne out of a recognition that they had 29 marginal seats and that they were not going to win any seats in rural Australia. That was when they started to take some sort of interest in regional Australia, and their belated policies were flawed. They did nothing for regional Australia.With the partial sale of Telstra, we put in place a process where we see huge benefits coming to regional Australia. Only last week, Senator Richard Alston announced $21 million to improve regional telecommunications with a second tranche of a $250 million, five-year, regional telecommunications infrastructure fund called Networking the Nation. We saw the opportunities announced for regional Australia: programs in Tasmania that will improve telemedicine, programs in south-west Queensland for a women's justice network covering 16 locations, a pilot three-year project to assist women needing independent legal advice through video conferences, sites and training for community workers with connections to legal aid. I could go on and on about the sorts of programs that have been put in place through this fund.What happened when Labor was in government, when it sold the Commonwealth Bank, was that the now Leader of the Opposition made a promise not to sell the bank. They also put into the prospectus a commitment—a letter from the Prime Minister, I think it was—saying that they would not sell any more of the Commonwealth Bank. And what did they do? Was there any bleating about people in regional area as a result of what would happen with the sale of the Commonwealth Bank? There was nothing. They sold the Commonwealth Bank. They did not go to the Australian people, as we did. Before the last election we said that we would sell one-third of Telstra and, if we are to sell any more, we will come back to the people and let them decide. Labor did not do that. They did not do that with Qantas, with CSL or with anything else.The other thing that they did was that, when they sold those assets, they spent the money; they did not use it to retire debt. With the further projected sale of Telstra, we will retire 40 per cent of the Commonwealth debt which will reduce our interest payments by $8 billion. That is what we are going to do: wipe off that debt. What did the Labor Party do when it sold our assets? It spent the money. It wasted the opportunity to retire our debt.To have Senator Schacht come in here and bleat about an incident in Ballarat, when those people would be covered by other telephony services, to focus on that when there are issues of importance in Australia that require their attention says something about the Labor Party.15:18:002065Mackay, Sen SueSenator MACKAY9L6TASALP00—I admit I was absolutely stunned by the response to my question by Senator Alston today in relation to the commitment that he gave with regard to jobs in Tasmania. What was that response? He said, `I can't direct Telstra. I don't know anything about any job commitment to Tasmania. I don't know anything about 170 jobs. I don't know anything about 30 jobs to Tasmania. I can't direct Telstra.' As I said to Senator Alston, the reality is that this was his commitment. He said it in a press release. He cannot direct Telstra but he can say it in a press release in order to convince Senator Harradine to pass the one-third partial sale of Telstra. The commitment was given in the minister's own press release where he said:As part of its Australia-wide plan to speed up network modernisation and ISDN availability, ISDN services in Tasmania will achieve a 70% customer penetration by June 1997 and 90% by December 1997, creating an additional 30 jobs.Thank you very much, Minister Alston, because 90 per cent has been achieved but, unfortunately, the rest of Australia has approximately 96 per cent. But, unbelievably, when confronted with a commitment that this government gave not only to the people of Tasmania but also to Senator Harradine, with regard to job creation in the State of Tasmania, he said, `I don't know what you're talking about. I can't direct Telstra. Telstra is an independent organisation.'ZW4SHERRYSenator Sherry—He washed his hands.9L6Mackay, Sen SueSenator MACKAY—Thank you, Senator Sherry. He just washes his hands of the whole thing. What we say is this. If the minister cannot recall a commitment that he gave on 5 December 1996 to the people of Tasmania and to Senator Harradine in order to get the one-third privatisation sale through, what can we expect from him with regard to any commitments he gives on the two-thirds sale of Telstra? What is he going to say a year after that, in the unlikely event that this government is re-elected and the legislation goes through? `That's nothing to do with me. That's Telstra. I can't direct Telstra.'The bottom line here is this. This government is intent on selling the whole two-thirds of Telstra. That is bad for regional Australia. The people of Tasmania will not forget the fact that today Senator Alston washed his hands of any commitment that he and his government gave in relation to the one-third privatisation. I hope that Senator Harradine is listening because I say to him: you cannot trust this government. You could not trust this government with regard to the one-third sale of Telstra and you cannot trust a single thing they say with regard to the two-third sale because they are not going to honour their commitment. Minister Alston cannot even remember the commitment he gave 18 months ago, never mind honour it!Let us have a look at the 30 jobs that he committed to Tasmania on 6 December 1996 in his press release. Have they been created? No, they have not been created. In fact, Telstra has been downsized by hundreds in Tasmania. But, interestingly enough, what do we find in the papers recently? An ad for telecommunications which says:Skilled Communications, a division of Skilled Engineering Ltd, is seeking expressions of interest from people to undertake tasks associated with the installation and maintenance of telecommunications plant and equipment.Prior experience in telephony installation, maintenance and network upgrade is essential.And where is the address? Nunawading!ZW4SHERRYSenator Sherry—On the mainland!9L6Mackay, Sen SueSenator MACKAY—Yes, this is for jobs to be created in Tasmania, Senator Sherry. Not only is that commitment of 30 jobs not being honoured but they are advertising these jobs in Victoria. First, the minister has convenient amnesia on the one hand with respect to Tasmanian jobs and, second, at the same time as he has this convenient amnesia these same 30 jobs are being contracted out and will go to people from outside of Tasmania. So much for commitments given by this government with respect to the sale of one-third of Telstra. I say to Senator Harradine if he is listening, `Do not trust the word of this government. They will not deliver and they will not honour commitments given to you.'15:23:002066Macdonald, Sen SandySenator SANDY MACDONALDCX5NSWNP10—I also wish to note of the answer from Senator Alston to Senator Schacht. I am sorry that Senator Schacht has left the chamber. He was having a bit of fun interjecting, and I wanted to give him a quote of Adlai Stevenson that says, `Why is it that, when political ammunition runs low, inevitably the rusty artillery of abuse is always wheeled into action?' I think that says a lot about Senator Schacht. I do not think he takes his shadow responsibilities for telecommunications terribly seriously. After all, I think Senator Alston is still waiting for his submission to the Mansfield inquiry on the ABC. Clearly, Senator Schacht is derelict in his duty, and probably his colleagues realise that and he is a bit of a joke. He has a lot to smile about and I wonder why.The government has introduced the legislation for the sale of the remaining two-thirds of Telstra. I wish to make a couple of points about this historic move. By selling the government's remaining stake in Telstra we are bringing Australia into line with the rest of the world. If Senator Schacht wants us to remain in the league of Mozambique and Albania, that is terrific, but I think even Albania is selling its telco and the only country that is not proposing to sell its telco is Cuba.We plan to so something worth while with the proceeds of the sale. The first objective is to retire debt, and we plan to slash by about 40 per cent the $100 million government legacy left to us by former finance minister, Kim Beazley, as my colleague Senator Patter son said. This will mean a corresponding enormous and continuing reduction of our annual interest payments. This will benefit all Australians much more than any annual dividend the government would otherwise receive from Telstra, a fact that has been confirmed by independent economists.The second objective is to deliver a social benefit, the full details of which have yet to be announced. But this government's $1.25 billion Natural Heritage Trust, which was a commitment from the sale of the first one-third of Telstra—a historic commitment unsurpassed by any government in Australia's history—demonstrates our ability to run a successful program that spreads a genuine benefit right across the nation from small landcare groups to entire catchments. The Labor Party complained about not receiving funds from the Natural Heritage Trust, but it needs to be said again and again that they represent only 1.3 per cent of the land mass of Australia. Their credentials as being a truly representative party are a complete and utter farce.The ALP has plenty of form on privatisation. The difference is that when we said that we were going to sell something we did. When they said they were not going to privatise something they went exactly against what they had proposed. I give the example of the Commonwealth Bank. Really, the problem for the ALP with the sale of Telstra is that they know what is right. Senator Schacht probably knows what is right. Mr Beazley wanted to privatise Telstra in 1994 and he said as much privately. Mr Keating said that there was nothing wrong with it in principle. If you believe Graham Richardson in Whatever It Takes, pretty clearly Mr Keating wanted to sell Telstra. At the Hobart conference—the great debating failure that livened up the early part of the year with Cheryl Kernot's marvellous cameo performance, wonderful entertainment for the people of Australia but not much vision for the future of Australia—the ALP proposed that they were going to sell an additional 19 per cent of Telstra. It was actually there, ready for debate. It was knocked off but still there, still part of the parcel. They were wanting to do something that was fundamentally right for Australia but were not able to do so.We said in 1996 that we would privatise one-third, and we did. We won the election, we sold one-third of Telstra and we provided over $1.25 billion to the Natural Heritage Trust. One point six million Australians bought shares, including 600,000 new investors, and 92 per cent of Telstra employees bought Telstra shares. That included, might I say, people in regional Australia who supported it: 200,000 investors west of the Great Dividing Range. I admit that regional Australia has some legitimate concerns about all telecommunications changes, but they have no concerns about the privatisation as such. Telecommunications are the key to regional development and to decentralisation in Australia. (Time expired)15:28:002067Hogg, Sen JohnSenator HOGG7L6QLDALP00—I am surprised that Senator Sandy Macdonald did not defend his leader a little better, but we will come to that in a few moments. Today we heard a question directed to the minister about the failure of Northgate to supply the services that were much vaunted and trumpeted by this government. Clearly, what we see now is the government in retreat. The government cannot face the fact that all their publicity, all their praise, for the service that was offered by Northgate has just gone straight out the door. They are saying that their fall-back position is that they are going to keep long-distance calls, but the trumpeting was about the local calls. The public, particularly in rural and regional Queensland where I come from, are saying, `Well, if this is the test case, the test case has failed.Senator Ian Macdonald interjecting—7L6Hogg, Sen JohnSenator HOGG—The test case has failed, Senator, and you know that. Even Senator Patterson had to admit that the outcome was disappointing. We then had Senator Patterson say that it was a commercial decision because of a small number of customers. This is the very fear that plays on the minds of the people—a fear not created by me nor my colleagues but by the very actions of the government—because they fear that having once received a service, much vaunted and much praised, they will see themselves go down exactly the same path. They have no faith in the government.Of course, when the government raised the prospect that there was going to be the further sale of Telstra, what did we find? In the conservative press in my state, in the rural and regional areas in particular, we found people coming out and saying that they could not trust the government to deliver them a service because, one would think, the fear is that, once commercial decisions come into this, once there is an idea that there is a profit to be made, then these people will be denied their service as such.And what have we already seen? Under the one-third privatisation of Telstra, we have already seen a decline in service to the people in rural and regional Australia. Then, in more recent times, we had Mr Fischer, the Leader of the National Party, raising issues about the services offered in North Queensland at the time of a recent flood there. So it is a concern on their side of politics.But what do we have? We have a situation where the people in rural and regional Australia are raising legitimate concerns about their ability to receive basic operational telecommunication services in rural and regional areas. Of course, we have already seen Northgate fail, and we have seen a major report which shows that there is a decline in the services being offered through Telstra.Now what are we to see? Is the new policy for people in the country to involve a pedal wireless? Will we go back to the pedal wireless and have the government vaunting that as some sort of fitness and health program for people in rural and regional areas? Will they say that this is really a modernisation in telecommunication systems for people in rural and regional Australia? That is about all they are going to offer if they keep going down the path that they are going down.We have heard nothing from this government that will give any certainty to people in rural areas. Even if the government does go ahead with their further privatisation of Telstra, there is no guarantee of service to people in rural Australia. Rural Australian people deserve something better than they are being offered by this government at this point in time.Clearly, when you look at how they trumpeted the service that came out of Northgate, nothing was delivered in the longer term, and that is something that rural Australia is definitely aware of and something that they will take into consideration when this goes before the ballot box some time this year. Undoubtedly you can fool some of the people some of the time, but not all of the people all of the time.15:33:002068Eggleston, Sen AlanSenator EGGLESTON4L6WALP10—Senator Hogg, you can fool some of the people some of the time, but not all of the people all of the time, and you have not fooled anybody any of the time because I assure you that, under the sale of Telstra, people in regional and rural Australia will not be disadvantaged at all. The universal service obligations will be maintained and people in regional and rural Australia will continue to have an excellent, competitive and cheap telephone and telecommunication service under the Howard government following the sale of Telstra and the expansion of competition.This debate has been hung around the fact that a very small company in Victoria closed down its local operation, and they did that because they only had 50 customers. Not many companies, I assure you, could survive with just 50 customers. So that company came to a very reasoned and sensible commercial decision and closed down their local services. What has not been mentioned by the opposition, of course, is that they have maintained untimed calls at 95c a call to other capital cities and overseas calls at $4.95.But let us get back to the main issue—services to rural and regional Australia following the sale of Telstra. The government has guaranteed that regional and rural Australia will not be disadvantaged once the sale goes through because the universal service obligation will be maintained.Let us just see what that universal service obligation is. First of all, it will mean that installation and maintenance costs in regional areas will be subsidised by phone users in the cities. The universal service obligation will mean that access to public switch telephone networks will be maintained; the ability to make and receive national and international calls 24 hours a day will be maintained; there will be 24-hour access to the emergency number which gives the customer access to emergency services free of charge; there will be continued 24-hour access to operator assistance for directory assistance, national and international call connections and reporting of service difficulties; every customer will have a unique telephone number; and, furthermore, there will be a level of privacy and security maintained to enable users to conduct business and personal communications with confidence.All of these things will be maintained under the universal service obligation when Telstra is privatised and other operators come in to provide competition. After privatisation, Telstra will continue to improve its services in regional areas, building on its present commitment to upgrade all exchanges to digital technology with effective completion by December 1998.These ongoing investment plans will not be affected by changes in the ownership and structure of Telstra. In fact, in the last six months of 1997, Telstra spent—wait for it—$1.53 billion on telecommunications equipment in Australia, and nearly 40 per cent of that money was spent in regional areas. There is no doubt at all that the full sale of Telstra will have enormous benefits for ordinary Australians in general and for those in regional Australia in particular. The sale of Telstra will provide an opportunity for share ownership, it will help reduce the national debt by a factor of 40 per cent and it will ensure healthy competition in Australia's telecommunications industry. The outcomes of that for the people of Australia will be to promote better choice, enhance performance and provide lower prices for consumers.I think it was Senator Mackay who spoke about the costs of calls to consumers. It has to be remembered that telephone calls have been dropping steadily in cost over many years due to remarkable advances in technology. There is no doubt at all that when Telstra is privatised and the whole telecom munications industry is opened up to competition, those costs will continue to drop. (Time expired)10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Order! The time for the debate has expired.Question resolved in the affirmative.206910001CLERK ASSISTANTThe Clerk—Petitions have been lodged for presentation as follows:206930GX5Troeth Sen JudithTo the Honourable the President and Members of the Senate assembled in the Parliament.This petition of certain citizens of Australia, draws to the attention of the Senate the fact that members of the Royal Australian Navy who served in Malaya between 1955 and 1960 are still the only Australians, sent overseas on active service, whose service has not been recognised in three important areas:1. R.A.N. casualties are not yet included on the Roll of Honour at the Australian War Memorial alongside Army and R.A.A.F. casualties;2. R.A.N. service has not yet been recognised with the visible signs of service to Australia; the Returned from Active Service Badge and the Naval campaign medal; and3. R.A.N. service is still not acknowledged as eligible service for the Australian Service Pension, while service by Commonwealth and allied veterans from 55 other countries is.Members of the Army and R.A.A.F. who served during the same period in Malaya had their service fully recognised 24 hours after arriving in Malaya.In the 1997 Budget the Government partly recognised that R.A.N. service was "operational" and accepted responsibility for disabilities resulting from that service. Those affected appreciate the belated, partial recognition. However, government departments are still resorting to old, and inventing new excuses, to deny the above 3 points.Your petitioners therefore request that the Senate acts to help remove the injustice of 40 years and fully recognise R.A.N. service by providing the same recognition and benefits for that service. The cost will be minuscule, being mainly a transfer of pensions from "age" as paid by the Department of Social Security, to "service" pensions, paid by the Department of Veterans' Affairs.Senator TroethGX5Senator Troeth(from 30 citizens)20693701X4West Sen SueTo the Honourable the President and Members of the Senate assembled in Parliament; This petition of certain citizens of Australia draws to the attention of the Senate, decisions by the Howard Government affecting the price and availability of medicines.The decisions to remove (delist) a number of drugs from the Pharmaceutical Benefits Scheme and also the decision to pressure people to switch to cheaper, older and less effective drugs, will disadvantage the less well off in our community who will not be able to afford the best most suitable drugs, the drugs their doctors have prescribed for them.Your petitioners therefore pray that the Senate recognises that these changes are unfair. We call on the Government to reverse these decisions immediately.Senator West1X4Senator West(from 370 citizens)Petitions received.Notices206920692069Stott Despoja, Sen NatashaSenator STOTT DESPOJA3I6SAAD00—I give notice that, on the next day of sitting, I shall move:That the Senate—(a) notes, with concern, that the Prime Minister (Mr Howard) and the Minister for Aboriginal and Torres Strait Islander Affairs (Senator Herron) have failed to meet with the Wik people during this current Wik debate, despite repeated requests;(b) believes this lacks courtesy and is a political insult, especially at this time of concern for the Wik people; and(c) calls on the Prime Minister and the Minister for Aboriginal and Torres Strait Islander Affairs to rectify this situation and meet with the Wik people as soon as possible.20692069Heffernan, Sen BillSenator HEFFERNANC16NSWLP10—On behalf of Senator Watson, I give notice that, on the next day of sitting, he will move:That the following matter be referred to the Select Committee on Superannuation for inquiry and report:Options for dispute resolution consequential on the Federal Court decision concerning the powers of the Superannuation Complaints Tribunal.I seek leave to make a short statement in relation to the notice of motion.Leave granted.C16Heffernan, Sen BillSenator HEFFERNAN—The purpose of this reference is to allow the Select Committee on Superannuation to conduct a round table forum at the end of April to discuss the Superannuation Complaints Tribunal problem. The purpose of the forum is to provide interested parties with an opportunity to put their views and discuss solutions. The committee is conscious that the government is working to resolve the difficulties that arise as a result of the Federal Court decision and sees the proposed forum as a constructive initiative to assist the government in finding a solution. The committee will report the proceedings of the forum to the Senate when the Senate resumes for the budget session.20702070Carr, Sen KimSenator CARRAW5VICALP00—I give notice that, on the next day of sitting, I shall move:That the Senate—(a) notes: (i) the Government's response to question no. 52 from the Employment, Education and Training Legislation Committee's estimates hearing of 16 September 1996, which outlines a drop in real terms in funding for government schools, (ii) that this answer gives lie to the Government's claim that funding for government schools is actually increasing, and (iii) that it is being denied an update on information that it was provided with 2 years ago, on the spurious claim that it may be used to calculate cost index parameters; and(b) condemns the Minister for Employment, Education, Training and Youth Affairs (Dr Kemp) for his: (i) refusal to update these figures despite the agreement given at the Employment, Education and Training Legislation Committee's estimates hearing of 25 February 1998 to do so, (ii) display of contempt for the committee system in agreeing to take the matter on notice and then refusing to provide the information requested, and (iii) heavy-handed attempt to avoid parliamentary scrutiny and stifle debate on the funding of government schools in Australia. 20702070Heffernan, Sen BillSenator HEFFERNANC16NSWLP10—On behalf of Senator Watson, I give notice that, on the next day of sitting, he will move:That the time for the presentation of the report of the Select Committee on Superannuation on the provisions of the Workplace Relations Amendment (Superannuation) Bill 1997 be extended to 14 May 1998.20702070Ray, Sen RobertSenator ROBERT RAYUI4VICALP00—I give notice that, on the next day of sitting, I shall move:That the Senate notes that:(a) the Prime Minister's `Guide on the Key Elements of Ministerial Responsibility' states that `ministers are required to divest themselves of all shares and similar interests in any company or business involved in the area of their portfolio responsibilities. The transfer of interests to a family member or to a nominee or trust is not an acceptable form of divestment'; and(b) it is now 27 days since the Prime Minister (Mr Howard) defied his own guidelines.20702070Brown, Sen BobSenator BROWNQD4TASAG00—I give notice that, on the next day of sitting, I shall move:That the Senate—(a) notes the large rallies around Australia on the weekend of 4 April and 5 April 1998 in support of the Mirrar people and against the mining of uranium at Jabiluka; and(b) calls on this and future Australian Governments to ban any export of uranium from the Jabiluka mine.20702070Tierney, Sen JohnSenator TIERNEYO15NSWLP10—I give notice that, on the next day of sitting, I shall move:That the Senate—(a) expresses its dismay that Energy Australia and the New South Wales Labor Government are trying to halt the important Redbank power project in the Hunter Valley;(b) notes that the Redbank project offers the Hunter region more than 1 200 jobs, a $315 million investment and an annual $10 million injection into the region's economy; (c) condemns any move to terminate the project; and(d) calls on the New South Wales Labor Government and Energy Australia to fulfil their contract and allow the Redbank project to go ahead.20712071Carr, Sen KimSenator CARRAW5VICALP00—On behalf of Senator Bishop, I give notice that, on the next day of sitting, he will move:That the time for the presentation of the report of the Community Affairs References Committee on the current arrangements for the provision of public dental services in Australia be extended to 28 May 1998.20712071Allison, Sen LynSenator ALLISON1M6VICAD00—I give notice that, on the next day of sitting, I shall move:That the Senate—(a) notes that: (i) an amendment to the Victorian Equal Opportunity Act will be introduced into the Victorian Parliament in the week beginning 5 April 1998 seeking to outlaw discrimination against women who breastfeed in public places, (ii) the uncertain status of the law has recently resulted in some Victorian women being stigmatised or ordered out of public spaces for breastfeeding, (iii) Queensland is the only State that has legislated to outlaw discrimination against breastfeeding women, (iv) the beneficial effects of breastfeeding on an infant's psychological and physiological well-being far outweigh those of bottle-feeding, and (v) research findings show that public censure helps to deter many women from continuing breastfeeding;(b) supports efforts in States other than Queensland to clarify, by way of specific laws or regulations, the right of mothers to breastfeed in public without hindrance; and(c) recognises that: (i) a mature, democratic society should foster a climate in which women are not denied participation in the public sphere as a result of functions associated with parenting, including breastfeeding, and (ii) breastfeeding is not indecent exposure, but is rather a practice that is necessary for infant welfare.20712071Coonan, Sen HelenSenator COONAN2M6NSWLP10—I give notice that, on the next day of sitting, I shall move:That the Senate—(a) notes: (i) the launch, on 1 April 1998, of Australia's annual National Battle of the Bands competition, which is a joint initiative of the Federal Government and the Rock Eisteddfod Challenge to find the best secondary school rock band in the country, and (ii) the vital importance of allowing young Australians to showcase their musical talents through a contemporary medium; and(b) commends the organisers of the Battle of the Bands competition for promoting the importance of drug-free lifestyles through the event and for providing a great platform to promote and celebrate20712071Brown, Sen BobSenator BROWNQD4TASAG00—I give notice that, on the next day of sitting, I shall move:That the Senate—(a) notes that: (i) the Victorian Government authorised logging 100 metres into the 200-metre heritage river area along the Goolengook River in East Gippsland, and (ii) heritage rivers, like national parks, are protected by legislation which was in place when the East Gippsland Regional Forest Agreement was signed; and(b) calls on the Federal Government to ensure that the Victorian Government meets its environmental obligations and, in particular: (i) conducts all future logging operations in East Gippsland in accordance with the law, (ii) complies with the spirit and provisions of the Heritage Rivers Act, as passed in 1992, and (iii) adds sufficient forests to Victoria's national parks to compensate for those heritage river areas that have been destroyed. 20722072Tierney, Sen JohnSenator TIERNEYO15NSWLP10—I give notice that, on the next day of sitting, I shall move:That the Senate—(a) condemns the failure of the New South Wales Carr Government to support the Central Coast's Planet Earth 2000 project;(b) notes that this failure will cost the Central Coast jobs, tourism and a substantial boost to its economy;(c) reminds the New South Wales Labor Government of the strong support the project has on the Central Coast, with the recent presentation to the State Government of a petition from 14 000 signatories; and(d) calls on the New South Wales Labor Government to accept that fault for the project's failure lies firmly on its shoulders.Business20722072Motion (by Senator Carr) agreed to:That general business notice of motion No. 1069 standing in the name of Senator Carr for today, relating to the failure of the government to respond to questions and reports on education, be postponed till 8 April 1998.2072Motion (by Senator Bartlett) agreed to:That general business notice of motion No. 1028 standing in the name of Senator Bartlett for today, relating to the practice of face branding of cattle, be postponed till the next day of sitting.2072Motion (by Senator Chris Evans, at the request of Senator Mackay) agreed to:That general business notice of motion No. 641 standing in the name of Senator Mackay for today, proposing an order for the production of documents by the Minister representing the Minister for Workplace Relations and Small Business (Senator Alston), be postponed till 25 May 1998.2072Motion (by Senator Chris Evans, at the request of Senator Faulkner) agreed to:That general business notice of motion No. 931 standing in the name of Senator Faulkner for today, relating to the appointment of a select committee on certain government accountability matters, be postponed till the next day of sitting.2072Motion (by Senator Brown) agreed to:That general business notice of motion No. 1070 standing in the name of Senator Brown for today, relating to Tibetan hunger strikers in India, be postponed till the next day of sitting.Miscellaneous2072Motion (by Senator Brown) proposed:That the Senate—(a) is concerned for the welfare of four prominent former members of the Indonesia People's Democratic Party, being Mugianto, Nesar Patria and Aan Rusdianto from Jakarta, and Andi Arief from southern Sumatra, all of whom were arrested in March 1998;(b) notes that: (i) Mugianto, Nesar Patria and Aan Rusdianto are reported to have been charged under the 1962 subversion law carrying the potential death penalty, and (ii) Andi Arief, who is also chairperson of the organisation, Students in Solidarity for Democracy in Indonesia, is reported to have been taken away at gunpoint and his whereabouts are unknown; and(c) calls on President Suharto to ensure the safety and release of all four persons unless they are quickly brought to an early, fair and open trial in which their full legal rights are met. Question put.15:53:00The Senate divided. (The President—Senator the Hon. Margaret Reid)9Allison, L. Bartlett, A. J. J.Bourne, V.* Brown, B.Lees, M. H. Margetts, D.Murray, A. Stott Despoja, N.Woodley, J.44Bishop, M. Boswell, R. L. D.Brownhill, D. G. C. Campbell, G.Campbell, I. G. Carr, K.Collins, J. M. A. Cook, P. F. S.Coonan, H. Crane, W.Denman, K. J. Eggleston, A.Evans, C. V.* Faulkner, J. P.Ferguson, A. B. Forshaw, M. G.Heffernan, W. Hill, R. M.Hogg, J. Kemp, R.Lightfoot, P. R. Lundy, K.Mackay, S. McKiernan, J. P.Minchin, N. H. Murphy, S. M.Neal, B. J. Newman, J. M.O'Brien, K. W. K. O'Chee, W. G.Parer, W. R. Patterson, K. C. L.Payne, M. A.Quirke, J. A.Ray, R. F. Reid, M. E.Reynolds, M. Schacht, C. C.Tambling, G. E. J. Tierney, J.Troeth, J. Vanstone, A. E.Watson, J. O. W. West, S. M.Question so resolved in the negative.Business20732073Motion (by Senator Woodley) agreed to:That business of the Senate notice of motion No. 1 standing in the name of Senator Woodley for today, relating to the reference of matters to the Environment, Recreation, Communications and the Arts References Committee, be postponed till the next day of sitting.2073Motion (by Senator Ian Campbell)—by leave—agreed to:That on Tuesday, 7 April 1998:(a) the hours of meeting shall be 12 noon to 6.30 pm and 7.30 pm to 11.30 pm;(b) the routine of business from 12 noon to 2 pm and 7.30 pm to 10.50 pm shall be government business only; and(c) the question for the adjournment of the Senate shall be proposed at 10.50 pm.Miscellaneous20732073The PRESIDENTThe PRESIDENT10000PON/A10—Order! I present a response from the Ambassador of Israel to the resolution of the Senate of 23 March 1998 concerning the imprisonment of Mordechai Vanunu.Miscellaneous20732073207315:58:002073Heffernan, Sen BillSenator HEFFERNANC16NSWLP10—On behalf of Senator Knowles, I present the transcript of evidence for the Community Affairs Legislation Committee's consideration of the supplementary and additional estimates for 1997-98, together with additional information received by the committee.Committees20732073207315:59:002073Ray, Sen RobertSenator ROBERT RAYUI4VICALP00—I present the 70th report of the Committee of Privileges, entitled Questions arising from proceedings of the Parliamentary Joint Committee on the National Crime Authority .Ordered that the report be printed.UI4Ray, Sen RobertSenator ROBERT RAY—I seek leave to move a motion in relation to the report.Leave granted.UI4Ray, Sen RobertSenator ROBERT RAY—I move:That the Senate take note of the report.On 26 June 1997, on the motion of Senator Ferris, the following matter was referred to the Committee of Privileges:That the questions raised in the letter dated 26 June 1997 from the Joint Committee on the National Crime Authority be referred to the Standing Committee of Privileges.The questions involved the appearance at a public hearing by Mr John Elliott after Mr Elliott had made a written submission relating to an inquiry by the joint committee on the operations of the National Crime Authority. One member of the Committee, Senator Stephen Conroy, sought to question Mr Elliott using as a basis for his questioning a document which was challenged by Mr Elliott's legal adviser as being improperly obtained. As a consequence of the NCA committee discussions, the document from which he quoted was expunged from the Hansard record of proceedings.Following the public hearing, the NCA committee raised questions on which it sought what was in effect an advisory opinion from the Senate Committee of Privileges. The questions, in order, asked by the NCA committee and the answers which the Committee of Privileges now gives, are as follows:(a) whether Senator Conroy's rights in relation to his capacity to question a witness appearing before the Committee were infringed in relation to the Committee's proceedings in Melbourne on 12 June 1997.The answer to that is:Having concluded that none of the evidence given by Mr John Elliott in his written submission of 4 June 1997, and his oral presentation of 12 June 1997, should have been received by the National Crime Authority Committee (see answers to questions (b) and (c) below), and that as a consequence no members of that committee should have been permitted to question him, the Committee of Privileges must also conclude that Senator Conroy's rights as a member of the committee were not infringed.The next questions are:(b) whether a member of the Committee is prohibited from asking questions of a witness in respect of evidence given to the Committee by that witness covered by either of the elements of subsection 55(2) of the National Crime Authority Act 1984 or that relates to material covered by section 51 of the Act.and(c) whether the Committee was prohibited from receiving some or all of the evidence of Mr John Elliott in Melbourne on 12 June 1997, because of the provisions in subsection 55(2) of the National Crime Authority Act 1984, or because the evidence related to material covered by section 51 of the act.The answer to that is:The Committee of Privileges has concluded that, given the nature of Mr Elliott's evidence, both written and oral, before the NCA Committee, that committee was so constrained by subsection 55(2) of the National Crime Authority Act 1984 that it was prohibited from receiving any such evidence. It follows that committee members were similarly prohibited from asking questions of him in respect of the proscribed evidence. It also follows that committee members generally are prohibited from either receiving, or asking questions in respect of, evidence given by a witness covered by either of the elements of subsection 55(2) of the National Crime Authority Act 1984.The committee has further concluded that section 51 of the National Crime Authority Act 1984 had no application to the proceedings of the National Crime Authority Committee on 12 June 1997, and has no general application to that committee's proceedings.The question under (d) was:(d) whether, as a consequence of the consideration of point (c), some or all of the evidence Mr Elliott gave to the Committee should be expunged from the transcript of evidence.Our answer to that is:While this question is ultimately a matter for the NCA Committee to determine, the Committee of Privileges suggests that expungement of any evidence taken by that committee on 12 June 1997 is impracticable, ineffectual and undesirable.In reaching these conclusions, the Committee of Privileges points to the difficult relationship between the NCA Committee and the National Crime Authority since the act came into operation because of the constraints imposed by section 55(2). It observes that the present NCA Committee might not have faced such difficulties as have led to the present conclusions if recommendations of its predecessor had previously been acted upon.The Committee of Privileges notes that the NCA Committee has tabled in the House of Representatives and is about to table in this chamber a report on the general terms of reference to which I have referred; it hopes that the statutory constraints which have caused such difficulty for the National Crime Authority Committee since its establishment will be promptly addressed. I seek leave to continue my remarks later.Leave granted; debate adjourned.Bills2074r435207416:04:002074O'Chee, Sen BillSenator O'CHEEEU4QLDNP10—On behalf of Senator Knowles, I present the report of the Community Affairs Legislation Committee on the provisions of the Aged Care Amendment Bill 1998, together with submissions and transcript of proceedings.Ordered that the report be printed.Miscellaneous20752075207516:05:002075O'Chee, Sen BillSenator O'CHEEEU4QLDNP10—On behalf of Senator Tierney, I present additional information received by the Employment, Education and Training Legislation Committee, in response to the 1997-98 budget estimates and additional estimates hearings.Committees20752075207516:05:002075Coonan, Sen HelenSenator COONAN2M6NSWLP10—On behalf of the Joint Standing Committee on Treaties, I present the committee's 13th report, together with submissions, transcript of evidence and minutes of proceedings. I seek leave to move a motion in relation to the report, to incorporate my tabling speech in Hansard and to continue my remarks later.Leave granted.2M6Coonan, Sen HelenSenator COONAN—I move:That the Senate take note of the report.The document read as follows—The Report I have just tabled is a fairly typical one for the Joint Standing Committee on Treaties.It deals with a total of eight agreements, two of which are on the topic of sea dumping of wastes. The other two multilateral agreements are about Australian involvement in amendments to the International Whaling Convention the Truce Monitoring Group on Bougainville and.The four bilateral agreements deal with amendments to a double taxation agreement, amendments to a health services agreement, an extradition treaty and an agreement on judicial assistance and cooperation. These agreements are with four quite different countries, and give some indication of the variety of work undertaken by the Treaties Committee.The so-called London Convention will be replaced by the 1996 Protocol when sufficient countries have expressed consent to be bound by it. Our consideration of this Protocol is the subject of almost half a long chapter in this report. It is particularly appropriate for us to have reported on this matter in the International Year of the Oceans. We gave further consideration to this Convention in the context of the withdrawal of a previous declaration of objection about the spoil form mining of jarosite. It is good to be able to record that this mining has ceased and Australia is now able to withdraw its earlier declaration.The third multilateral treaty we considered in this Report was the amendments agreed at the 49th Annual Meeting in October 1997 to the International Convention on the Regulation of Whaling .Australia has been opposed to commercial whaling for many years and supported these amendments. The Committee is aware of strains within the Commission set up by the Convention and the fact that there are real concerns about the future role and viability of the Commission.During this inquiry, at a hearing in Sydney, we took evidence from Mr Chris Puplick who was the Chairman of the National Task Force on Whaling. He was also, as many Honourable Senators will remember, a Senator for NSW for a number of years. The Report of the Task Force was an important document in the preparation of this Report. Mr Puplick's wide and detailed knowledge of the international whaling was reflected in his evidence which was of great assistance to the Committee.The fourth multilateral agreement which is in this Report is the Agreement on the Neutral Truce Monitoring Group in Bougainville . I am sure all Honourable Senators will be aware of the tragedy which has been going on in Bougainville since 1989.Australians, both Australian Defence Force and other non-military personnel, were involved in the Truce Monitoring Group and earned great credit by their performance. All personnel were unarmed and behaved with commendable professionalism.The presence of a number of women was of some concern at the start of the TMG's operations. Bougainville is a matriarchal society and women members of the TMG were invited to discuss issues with village women in a way which was, of course, of considerable benefit to the peace process.The Committee agreed unanimously in all eight cases that the Agreements should be supported. In its consideration of the various agreements which are tabled, it is providing the sort of Parliamentary scrutiny which was missing in the past.This is a busy Committee which, having tabled this Report, is handling another three major inquiries with another to come following tabling of two further agreements last week.I commend the Thirteenth Report of the Joint Standing Committee on Treaties to the Senate.Debate adjourned.2076207616:06:002076O'Chee, Sen BillSenator O'CHEEEU4QLDNP10—On behalf of Senator MacGibbon and the Joint Committee on Foreign Affairs, Defence and Trade, I present a report entitled Australia and ASEAN: Managing Change , together with submissions, transcript of evidence and minutes of proceedings.Ordered that the report be printed.EU4O'Chee, Sen BillSenator O'CHEE—I seek leave to move a motion in relation to the report, to incorporate Senator MacGibbon's tabling statement in Hansard and to continue my remarks later.Leave granted.EU4O'Chee, Sen BillSenator O'CHEE—I move:That the Senate take note of the report.The statement read as follows—This report of the joint committee on Foreign Affairs, Defence and Trade—Australia and ASEAN: Managing Change —is its first in this area since 1984. I thank Margaret Swieringa for her work in its preparation.As all senators are aware, a profound change has occurred in the region. The optimism of the early part of this inquiry, that ASEAN economies would continuously grow and prosper, has been tempered by the currency crisis which began in Thailand in July last year and has since affected, in varying degrees all of east Asia. The crisis has brought expectations of growth back to more standard levels, has highlighted the complexities of achieving sustainable development and has emphasised the importance of institutional development and good governance in that process. It has thrown down a challenge to ASEAN—its slow consensual style, its decisiveness and its cohesion.The crisis also has altered the strategic outlook for the region, with the strategic uncertainty inherent in the reorientation of great power politics at the end of the cold war exacerbated by the possible threat to internal political stability in some states. The decline in economic circumstances is likely to worsen the broader security threats of transborder crime, illegal movements of peoples, the outflow of refugees, disputes over environmental degradation and competition for resources. Many of these are issues of concern already on the agenda of the ASEAN regional forum—an undeveloped avenue for regional consultation, whose importance is recognised and supported by the committee.The inquiry took a considerable body of evidence in the early part of 1997 which stressed the oppor tunities in the region for Australian trade. Australia's natural, geographically-based connection to the `fastest growing region in the world' appeared to ensure the expansion of Australian export trade. The report deals in some detail with an analysis of the bilateral and sectoral trade relationship between Australia and the region and including regional trade liberalisation under AFTA and APEC.The committee does not underestimate the seriousness of the current problems or the challenges they pose. These are not simple or painless matters for countries to resolve. The committee was able to take some evidence on the possible causes of the problems and on the response of the IMF and regional governments. The committee endorses the Australian government's readiness to participate in the IMF packages offered to the republic of Korea, Thailand and Indonesia. However, with such rapidly developing circumstances over recent weeks, our analysis is simply a snapshot. The seminar held in parliament house on 19 march and the seminar report will elaborate on our preliminary findings, particularly in respect of Indonesia.The report remains optimistic about long term trends. It concludes that `despite the recent economic difficulties in the region, which are likely to result in depressed demand for Australian exports in key ASEAN markets, the prospects for continued growth in two way trade in the long run remain solid.'However, in other spheres of our relationship with the region, some concerns were expressed. Many witnesses stressed the importance of paying more attention to the social, cultural and political relationships between Australia and regional countries. Areas of weakness were perceived in bilateral tensions over political style or the differences in values, particularly human rights, declining cultural representation or the paucity of expenditure on regional cultural activity.Strongly criticised was the withdrawal of our most natural communication with the region through the closure of radio Australia. The committee strongly urges a reconsideration of the decision to close the Cox peninsula transmitters.The committee believes that: ASIAN studies and student exchanges, both of ASIAN students coming to Australia and of Australians studying in Asia be enhanced and improved; and that literary, artistic and cultural exchanges with the region be increased.To this end, the committee endorses the new international cultural council and hopes that it will be adequately funded and resourced to achieve real advances in regional understanding and appreciation. Development assistance to the region will need to be reassessed in the light of the economic downturn. The crisis has focused particular attention on the need for institutional strengthening and the development of regulatory and accountable systems. Many of the recommendations of the report are directed to strengthening capacity and institutions in both the financial and political spheres.In its 30th anniversary year, which ASEAN began as a self-confident, independent and forceful regional voice, the economic crisis has provided a challenge to the association's ability to retain its cohesion and to act decisively in the interest of the whole region. This report lays down some of these challenges.I commend the report to the senate.Debate adjourned.2077207716:06:002077O'Chee, Sen BillSenator O'CHEEEU4QLDNP10—On behalf of Senator Ferris and the Joint Committee on the National Crime Authority, I present a report entitled Third Evaluation of the National Crime Authority , together with submissions and transcript of evidence received by the committee.16:07:002077Conroy, Sen StephenSenator CONROY3L6VICALP00—by leave—I move:That the Senate take note of the report.I would like to firstly thank the committee secretariat for wading their way through a substantial amount of documentary evidence, Hansard , controversy—it was a very difficult report to prepare for the secretariat staff. I want to put on record my congratulations to them for their report. I would like to congratulate members of the committee for persevering at times under extreme duress, particularly when some witnesses gave their views of the committee at varying stages, but everybody maintained a degree of decorum you would expect.To the substance of the report, there are a number of recommendations in the report which I endorse. The majority of the recommendations were endorsed by a cross-section of all parties in the chamber. The report calls for a number of increases in the powers of the authority to deal with search warrants but at the same time keeps a balance between the civil liberties aspects.Probably the most controversial of the recommendations is to do with the powers of the committee itself, and that is what I would really like to speak about the most today. The committee report stresses the difficulties that the committee has in effectively supervising the National Crime Authority. What you have is a committee that is completely constrained by the act from actually being able to supervise the activities of the authority. This is a necessity and a balance that, when the legislation was passed—and this chamber debated it at length, I understand—was to protect the NCA from interference. At the same time, it has led to a committee that is unable to properly do its job. Governments of both persuasions have baulked at giving the committee more access and greater power. This is not a party political speech; this is to say that the committee, in the past, has been treated with a fair degree of disdain by governments from both sides. But in the light of what has transpired over the last few years and allegations that have mounted about the proper or improper behaviour of the NCA, the committee has been unable—it does not have the resources; it does not have the support—to effectively monitor the NCA.What we have seen is governments of both persuasions standing there and saying, `Yes, we have an oversight body. We have the joint parliamentary committee. It looks after the NCA. You can sleep well at night, citizens.' Members of the committee strongly felt that this furphy should be put to rest. This committee cannot effectively monitor the NCA. Ironically, it is probably the one thing I am in agreement on with John Elliott. There are not many things on which I and John Elliott agree.Senator Ferguson interjecting—3L6Conroy, Sen StephenSenator CONROY—He is the Carlton President for a start. John Elliott has stressed that the committee is incapable of supervising the NCA. Ironically, I agree with him. It is nigh on impossible to get an answer on a controversial issue out of the NCA. I am told that the current management of the NCA is much freer in what they are willing to discuss than previous managements of the NCA. The question of whether you can brief the parliamentary committee on the activities of the NCA is a difficult issue. The NCA is involved in many important investigations, particularly in the world of drugs. It is doing as good a job as it can within the funding levels that it has. Both sides have been responsible—again, this is a non-partisan position from the committee—for reducing funding levels for the NCA. It has gone too far. If this organisation is to be able to do its job properly both in corporate fraud and in the fight against the drug lords, then you absolutely have to be prepared to give this organisation more money. It has many runs on the board when it comes to breaking drug rings. It needs resourcing. The committee was told about many instances where the NCA is not able to pursue obvious cases that come to light because their funding is constrained. This is a fault of both governments. As I say, I am not here saying that the Labor Party, the Liberal Party or the coalition are responsible. This is something that has to be non-partisan.There is a need for greater funding for the NCA which is not tied. We have a situation at the moment where they have been given extra funding, and that is worthy, but it is tied to individual issues. They must be able to operate and monitor, and take advantage of increased funding to continue the pursuit of all sorts of organised criminal activities. Organised criminal activity is getting more and more sophisticated. We are hampering the NCA's capacity to fight it by its lack of support overall in its recurrent funding, its base level funding. I promised to only speak for five minutes. I do not want to hold the chamber up. I seek leave to continue my remarks later.Leave granted; debate adjourned.2078207816:13:002078O'Chee, Sen BillSenator O'CHEEEU4QLDNP10—On behalf of Senator Sandy Macdonald and the Senate Foreign Affairs, Defence and Trade Legislation Committee, I present report No. 1 of 1998 of the Senate Foreign Affairs, Defence and Trade Legislation Committee on the review of annual reports.Ordered that the report be printed.Miscellaneous207816:14:002078Quirke, Sen JohnSenator QUIRKEZS6SAALP00—by leave—I present the report of the Australian parliamentary delegation to the sixth annual meeting of the Asia Pacific Parliamentary Forum held in Seoul, the Republic of Korea, between 7 and 10 January 1998. I seek leave to make a few remarks with respect to this.Leave granted.ZS6Quirke, Sen JohnSenator QUIRKE—The report I have just presented records the outcomes of the sixth annual meeting of the Asia Pacific Parliamentary Forum which was held in Seoul, the Republic of Korea, from 7 to 10 January of this year. The Australian delegation was very capably led by Mr Bill Taylor, the member for Groom, and by Mr Harry Jenkins, the member for Scullin, the deputy leader. Other members were Paul Neville, the member for Hinkler, and myself. The delegation was given strong support in Korea by the Australian Ambassador, Mr Mack Williams, and by the counsellor at the embassy, Mr Richard Ryan. We were very grateful for this and for the excellent support provided before our departure in the form of high quality briefing material provided by the Department of Foreign Affairs and Trade and the Department of the Parliamentary Library.The APPF is now a well-established regional organisation to which Australia has made a strong contribution since its beginnings at the meetings in Singapore and Canberra in 1991. Previous annual meetings have been held in Japan, the Philippines, Mexico, Thailand and Canada. The organisation has evolved its own corporate practices and procedures over this time. The underlying principles have remained, however, and have been strengthened at each annual meeting. These principles include a commitment to frank and constructive dialogue between parliamentarians from the 26 member countries representing over 45 per cent of the world's population. I can inform the Senate that there certainly were free and frank exchanges of views at Seoul. At the sixth annual meeting the agenda covered a wide range of matters, many of which were the subject of consensus resolutions after the debate. These included: the fourth ASEAN regional forum; the Korean peninsula situation; Cambodia; APEC's Vancouver meetings; the Asian currency crisis; regional economic cooperation; the environment and other global issues such as energy, education, drugs, terrorism, cultural exchanges and corruption; the Ottawa convention; and Myanmar.Members of the Australian delegation participated fully in all plenary sessions and I believe made a significant contribution. We worked well together in the executive committee, the plenary and also the working committee to develop the joint communique. Australia also nominated with Japan, Korea, Peru and Thailand to serve on the APPF's technology working committee, which will be working towards, amongst other things, the establishment of an Asia Pacific interparliamentary open information network by 2001. This presents a particular challenge and an opportunity to create an effective, open and secure mechanism for legislative interchange and the information exchange between member parliaments and individual parliamentarians. As an early development, the APPF's website is already established and links most parliaments, albeit superficially at this stage.This was my first experience of an APPF meeting, but I know you, Madam Acting Deputy President, the President and your predecessors have given strong support to the APPF over the years. This year's meeting at Seoul was pleased to accept Australia's invitation to host the eighth annual meeting in Sydney in January 2000. This was widely seen as a further example of Australia's commitment to this important region.Bills2079r421207916:17:002079Ferguson, Sen AlanSenator FERGUSONEP5SALP10—I present the report of the Economics Legislation Committee on the provisions of the Taxation Laws Amendment Bill (No. 7) 1997 , together with submissions and transcript of evidence.Ordered that the report be printed.Committees2079207910000ACTING DEPUTY PRESIDENTThe ACTING DEPUTY PRESIDENT (Senator Patterson)—The President has received letters from party leaders seeking variations to the membership of committees.Motion (by Senator Ellison)—by leave—agreed to:That senators be discharged from and appointed to committees as follows:Community Affairs Legislation Committee— Appointed: Senator Patterson from 30 April 1998 Discharged: Senator Synon from 30 April 1998 Substitute member: Senator Lees to replace Senator Bartlett for the consideration of the provisions of the Health Legislation Amendment (Health Care Agreements) Bill 1998Community Affairs References Committee— Appointed: Senator Patterson from 30 April 1998 Discharged: Senator Synon from 30 April 1998House—Standing Committee— Appointed: Senator Carr National Capital and External Territories—Joint Standing Committee— Appointed: Senator Carr.Bills2079A message from His Excellency the Governor-General was reported, informing the Senate that he had assented to the following law: Customs and Excise Legislation Amendment Bill (No. 1) 1998. Bills2079r4552079Consideration resumed.(Quorum formed)10000CHAIRMANThe CHAIRMAN—The committee is considering the Native Title Amendment Bill 1997 [No. 2] . The minister has foreshadowed government amendments Nos 66 to 76 relating to the registration test—that is, topic 17.16:22:002080Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—In this debate on the registration test, I am being asked to support a physical connection test for native title rights. I am being asked to be amongst the first group of politicians in Australia to dismiss the spiritual and cultural imperatives of indigenous Australians; I will not be part of this. If Senator Harradine wishes to inflict another dose of cultural genocide upon Aboriginal people, let him do that with the support of the Prime Minister and Senator Minchin. He will certainly not get my assistance to ease his conscience on that matter.Both the government's provisions and Senator Harradine's amended physical connection test are utterly disrespectful to Aboriginal people. They are caving in to a racist paradigm which seeks to define `real' Aborigines. They ignore the shame and hurt that is felt and experienced by the stolen generations. It is one more kick in the teeth to the victims of an appalling modern day holocaust. Senator Harradine has a clear choice: his amendment does not have the numbers from the non-government parties in the Senate; either he sticks to his 1997 position, which maintains the Mabo spiritual and cultural connection test, or he supports the Howard government's despicable physical connection test.I have no doubt that Senator Minchin at some stage soon will attempt to discredit my argument by claiming that I do not understand the legislation and that I am not aware there is a two-stage process for native title claims. So I would like to put on record that I do understand that this physical connection test applies to the registration track of the proposed two-track process. I do understand that it requires at least one member of the native title claim group to have or have had a physical connection to the land claimed. I am also aware that the regulations refer to a physical connection. I believe those regulations should be disallowed, but there is a big difference between those regulations and this legislation. The regulations do not prevent someone from exercising statutory native title rights. Both Senator Minchin and Senator Harradine will claim that a physical connection test is needed to provide workability to exclude multiple claims. Let me make it clear now that the physical connection test has nothing to do with workability. In fact, most of the so-called problem areas associated with overlapping claims such as the goldfields involve claimant groups who would pass even the government's draconian physical connection test.This is not about workability; it is a direct attack on the integrity of Aboriginal culture and should be exposed as such. There is already a host of changes to the registration test which ensure that it will be far more difficult to gain registration for the purposes of gaining the right to negotiate. This physical connection test—and Senator Harradine's lawyers have said this to me—is about satisfying that racist sentiment in society that says that the indigenous people of this continent are only real Aborigines if they are still living in the bush and that, somehow, those who have moved or have been moved to places other than their traditional lands are inferior in terms of native title rights. That is what the physical connection test is about. I for one refuse to give way to this Hansonite view.It is totally insulting for Senator Minchin to say, as he has on many occasions, that this test is necessary to establish that only bona fide claimants obtain the right to negotiate. In effect, Senator Minchin is saying that those who have been denied the ability to maintain a physical connection for whatever reason are not bona fide Aboriginals. I must say that I am ashamed to be part of a parliament where such views are expressed. I am sure that in years to come people looking back at these debates will be shocked and appalled by such views, just as millions of Australians are currently shocked and appalled by such a notion.In essence there are two sets of reasons why the physical connection test should be opposed. The first set of reasons is associated with the short-term effects on the native title process. There are those legitimate claimants who may well achieve a determination of native title based on the Mabo test who will miss out on the right to negotiate. As Aboriginal people have stated on many occasions, native title is next to useless without the right to negotiate. For Senator Minchin or Senator Harradine to claim that this physical connection test is somehow justifiable because it applies only to those wishing to claim the right to negotiate is disingenuous in the extreme.I do not know how many registrations will be knocked out by this test, but neither does Senator Harradine nor Senator Minchin. The mere fact that there is a distinct likelihood that winnable claims will be denied the right to negotiate is sufficient for it to be rejected outright. Let us not forget, either, that the new registration regime will apply retrospectively to potentially knock out existing claims already in the right to negotiate process.There are very serious cultural and legal problems associated with a test involving parenthood, such as that which is proposed by Senator Harradine. During the committee hearings on the bill, Professor Marcia Langton said:The issue of apical ancestry in Aboriginal belief systems is one of belief, particularly because of such things as, say, in some Aboriginal societies there is the taboo on speaking the names of the dead.I hope somebody is listening to this because, if we are talking about people having to establish this in a court or before they get to any legal process, and if you are dealing with cultural issues where people are unable to speak the names of the dead, then you have a problem built in.It is not always going to be easy to establish that deceased parents had a physical connection to the land when, in some Aboriginal communities, it is actually against traditional laws to even speak the names of parents who have passed away, let alone establish a prima facie case before a tribunal, especially a native title tribunal which, under the changes proposed by section 109(2) of this bill, will not be able to take into account cultural and customary concerns which are deemed to unduly prejudice any other party to the proceedings.The other serious, and I would say fatal, flaw in Senator Harradine's amendment is the definition of `parent'. In many Aboriginal communities, a person's parent is not their biological mother or father but another member of the clan group. How does Senator Harradine, or anyone else, see the definition of `parent' being applied in a culturally appropriate manner? Again, how will it be defined by a tribunal and a Federal Court which have been restricted in their ability to take cultural and customary concerns into account?What about when a member of the stolen generation has been adopted? In this case their legal parent may well be a European Australian, and as such they will be excluded from being a person who can qualify as a native title claim group for the right to negotiate even if their biological parent, from whom they were stolen, had maintained their cultural and spiritual connection to the land. This amendment is the height of cultural insensitivity. It will see international derision heaped upon this country. It is a cruel joke played on the Aboriginal people of this continent.The second set of reasons why we will be opposing any form of physical connection test is perhaps even more important than the more technical issues I have already raised. It is the message it sends to the entire community about the nature of Aboriginal land rights. For the first time, this parliament will be saying that a former physical connection is necessary for a native title right to be enjoyed. How is that going to make Aboriginal and Islander people who do not pass the test feel about themselves and their cultures?I am sure that Senator Minchin will soon invoke his mantra that only one member of the claim group needs to be able to demonstrate a physical connection for a group to be registered, but what does this effectively do to establish a hierarchy of Aboriginality within Aboriginal communities? Those people in a community who cannot pass the government's test will know that they have not been classified by the government as the types of Aborigines who can qualify their claim group for the most important native title right available to indigenous communities—the right to negotiate—no matter what their history of oppression, no matter what irrepressible connection to country and culture those Aboriginal people have. This is really offensive stuff.What sort of country is willing to sell Aboriginal culture and spirituality for all it is worth when it comes to marketing for tourism or the Olympics, yet relegates it when it comes to actually providing substantive native title rights? People in this chamber who even contemplate a physical connection test of any kind have to take a really hard look at themselves and their commitment to understanding and reconciling with the Aboriginal people of this land.This issue highlights how totally inappropriate it is for a group of white parliamentarians—and I include myself—to be making laws about native title rights when there is no possible way that we can understand the complex nature of Aboriginal communities and their relationship with country. We run an enormous risk of making some horrendous mistakes. It is clear that the only native title rights which we should be passing into law are those which have the unadulterated and informed consent of indigenous Australians—and you could hardly say that of this bill.I know that we have been critical of the ALP over the last few days, but I acknowledge that Senator Bolkus abhors racial discrimination and that he reflects the views of rank and file members of the Labor Party who abhor racial discrimination. I therefore trust that the ALP will also reject Senator Harradine's amendment. It may be a marginal improvement on the government's measures, yet it falls far below the standards of racial discrimination to which Senator Bolkus and the Labor Party ascribe. The ALP has promised to maintain its position of 1997. Its rejection of Senator Harradine's amendment is central to keeping that promise.I indicate again that the Greens (WA) will not be supporting Senator Harradine's amendment, so it will not be a matter in this particular case of going from what is a preferred option to whatever happens to be left. In fact, we ask Senator Harradine to withdraw the amendment to avoid bringing further shame upon this parliament. I repeat that Senator Harradine now has a clear choice either to support a test which recognises spiritual and cultural connections or to be relegated to historical infamy by supporting the government agenda.16:32:002082Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I think it might be easier, given that in previous debates there has been some confusion about what we are dealing with, if we deal with the blocks as indicated and then work through them—that might be easier for everybody. Therefore, I will formally move amendments 66 to 69 so we can deal with them. I would be happy to deal with the lot at once but, if the committee prefers, in terms of dealing with government amendments first I suggest that we do it in blocks so that everybody knows what we are dealing with. The government amendments are all interrelated. If the committee finds it easier to do it that way, I am happy to oblige. I move:(66) Schedule 1, item 9, page 94 (after line 18), at the end of section 30, add:Registered native title rights and interests (3) For the purposes of this Subdivision, the registered native title rights and interests of a native title party are: (a) if the native title party is such because an entry has been made on the National Native Title Register—the native title rights and interests described in that entry; or (b) if the native title party is such because an entry has been made on the Register of Native Title Claims—the native title rights and interests described in that entry. Note about Schedule 1, item 9: The heading to section 30, page 93 (line 21) is altered by adding at the end "etc. ".(67) Schedule 1, item 9, page 95 (line 10), omit "determined or claimed", substitute "registered".(68) Schedule 1, item 9, page 106 (line 11), omit "determined or claimed", substitute "registered". (69) Schedule 1, item 9, page 106 (lines 27 and 28), omit "determined or claimed", substitute "registered".16:33:002083Harradine, Sen BrianSenator HARRADINE6H4TASIND00—Could I just clarify where the government amendments are that we are talking about?10000CHAIRMANThe CHAIRMAN—They are government amendments Nos 66 to 69 on page 17 of the sheet headed `Revised 2'. It is schedule 1, item 9, section 30 on the registration test.6H4Harradine, Sen BrianSenator HARRADINE—Madam Chair, it would help the committee if when indicating amendments the number of the document could be mentioned.16:35:002083Bolkus, Sen NickSenator BOLKUSXE4SAALP00—While people are looking for the description of the amendments, I will just indicate that amendment No. 66 goes to the question of native title parties. It allows for a bit more flexibility in respect of the registering on the title of those parties which have passed the registration test. We have no problem with that. Amendment No. 66 does that. Amendments Nos 67 to 69 are amendments to sections 31 and 39 and, in a sense, they are consequential amendments. They remove the words `determined or claimed' and replace them with the word `registered'. They pick up some of the concerns of native title claimants about the earlier test being a bit prohibitive. The opposition sees these amendments as beneficial and will support them.16:36:002083Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I wish to indicate that I have looked at those provisions and I have put a tick beside them, so I do not see any reason for delaying the committee.16:37:002083Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I need to speak to these amendments and to indicate the Democrats' position. This section of the government's amendments is perhaps the most troubling example of what the 10-point plan is really about. When we last debated this bill in December, I spoke extensively on the issue of spiritual connection to land, not just for Aboriginal and Torres Strait Islanders, islander Australians, but for all of us. I want to make some reference to that speech again.I must say that, in my experience as a clergyman, when people speak about the significance of spirituality there is no doubt that for many people that is the fundamental way in which they describe their being. That is so often true of Aboriginal and other indigenous people. For that reason, we see the registration test as a trapdoor through which the government would like native title to fall. It is a hurdle that Aboriginal and Torres Strait Islanders will have to jump to have their rights dealt with in a fair and equitable way. What is not very often understood, though, is that native title is the self-evident, manifest reality of their daily existence. Indigenous Australians do not need courts or tribunals to convince them of the existence of native title.The whole reason that native title exists in both common law and in statutes is because white people do not, in the main, recognise indigenous reality. Native title is an Aboriginal and Torres Strait Islander insurance policy against the repeat of the dispossession, dishonesty and genocide of the past. To gain that insurance, Aborigines are expected to pay too high a premium—for that is what the registration test is.I turn to Senator Harradine's amendment. This amendment requires that native title claimants have to prove not only that they had an association with the land but also that they have had regular physical access to the land. There is the qualification of an additional generation with the physical connection and we recognise that as an improvement, but the Democrats could not support this amendment. We believe that the physical connection test is flawed in morality and in law. The Democrats do not accept that, in moving this amendment, Senator Harradine has given enough consideration to issues such as those raised in the recent report on the stolen generation whereby many Aboriginal people were forcibly removed from their families and continuous physical relationship with the land was deemed impossible. I add that, with successive governments in Queensland of all complexions, it was government policy to move people from one end of the state to the other. I will give a couple of examples. One of the communities which has been spoken about on a number of occasions in this chamber is the community at Mapoon on western Cape York. Part of the reason that the Mapoon people are having such a struggle in resolving native title is that, even amongst themselves, there is confusion about who really belongs to that community, so a distinction has been made between historical and traditional people. The traditional people are those who can trace their ancestry back many generations, whereas historical people are people whose grandparents, perhaps, or great-grandparents were moved to Mapoon from many other parts of northern Queensland. For them Mapoon is also their land, but a distinction is made between those who can trace their ancestry back many generations and those who have an ability to trace their ancestry back only two or three generations.This whole issue is compounded by the fact that, in the early 1960s, the people were driven out of Mapoon. Some of them went to Thursday Island, some of them went to New Mapoon near Bamaga on the tip of Cape York, some of them went to Aurukun, and some of them went to Weipa. So again the removal of people was compounded.I have spoken on a number of occasions to some of the ancestors of the Mapoon people. In Cairns, for instance, a large group of them are trying to understand how they can reclaim their community. It is not a pastoral lease but the community has mining interests all around it. The people in the community want to re-establish their own community, yet they have this problem. If the registration test as proposed is applied, we will have to say to a whole group of people from Mapoon, `Sorry, you don't qualify.'The next example comes from Rosalind Kidd's book, The Way We Civilise It, from which I quoted a few days ago. In the community of Yarrabah near Cairns, almost all the people have come from somewhere else. What community do they belong to? That is the question that they ask. Many of them do not know where they came from, but Yarrabah has become their community. What kind of connection is required of them? Then there is the example from the time of the Second World War. Pastor Schwartz was the missionary at Cape Bedford in Cape York. Because he was a German he was regarded as a Nazi sympathiser. The belief was that he had perhaps infected the community at Cape Bedford, so the military authorities demanded that the mission be disbanded. Reverend Schwartz was kept under armed guard and his belongings were searched. The mission car was confiscated in 1942, leaving no transport for medical emergencies, et cetera. The 271 residents of Cape Bedford were transported about 2,000 kilometres to the Aboriginal community at Woorabinda in central Queensland.The relocation was appallingly bungled. Under military and police guard, people were refused time to gather clothing and belongings. Apart from a meal at Cooktown, no food was available next morning, nor on the 14-hour boat trip to Cairns, nor on the overnight train until 5.30 a.m. the next day at Cardwell. Nothing was provided from that evening until Rockhampton was reached the following afternoon. Woorabinda was nowhere near ready to accept them and to cut a long story short—and if I had time, I would certainly recall all of the disaster of this removal—YE4BOSWELLSenator Boswell—Please don't!HX5Woodley, Sen JohnSenator WOODLEY—I think I should for your sake, Senator Boswell. I might say that this happened under a Labor government.Many of those people died. What kind of physical connection test are you going to apply to them? To what community do they belong, Cape Bedford in Far North Queensland or Woorabinda in Central Queensland? This is the problem that we have with the definition of the registration test that the government, and certainly Senator Harradine in his amendment, are putting upon us. I know there is considerable support for the refining of the registration test. I think everyone agrees with that. But it cannot be so refined that it creates a situation where the registration test is so onerous that it effectively wipes out accessibility to native title procedures.It really is an issue of access to justice. A harsh test is not the issue. The injustice flows from a harsh test in combination with unreasonably tight time frames from notices that will have the effect of impairing or extinguishing native title. We believe the government is attempting to say to native title applicants, `Sure you can have native title. You even have native title procedures. Just use them but don't expect us to make them work.'On the other hand, the Democrat-Greens (WA) amendments will ensure that there are no technical knockouts of native title. Professor Langton, whom I mentioned in my earlier speech, in response to a question from Senator Ferris on overlapping claims—the main excuse the government is using to substantiate such a massive high jump bar for indigenous people to access their rights—said:So, in answer to Senator Ferris's question, I wanted to explain the problem in this way. I spoke before about how one of the principles which anthropologists have identified in order to ascertain the workings of an Aboriginal land tenure system is the notion of descent from an apical ancestor.As with all human cultures, the ancestor may be real or legendary, to use a lay term. For instance, British royalty had at one time its constitution in divinity and it was believed that the king, or the queen, was the divine representative on earth.It was called `the divine right of kings'. She continued:That is why the monarch is the representative of the Church of England, because of the doctrine of the monarch as divinity.In a similar way, most human cultures have a belief system about ancestry. These days with DNA and RNA testing, some of this can be affirmed or denied, but much of it still is not amenable to scientific inquiry. Belief systems are belief systems and as we know with racism, generally false propositions which operate on illogic are not amendable to facts. So in the same way belief systems are simply belief systems and there is no point in taking blood tests and doing DNA tests because it is not relevant to the exercise. One would not do a DNA test on the queen to see if she were, in fact, a descendant of God.That is rather a strange notion. Professor Langton went on to say a number of other things. That is available to us all in the transcript of that hearing.When we take into consideration the genocide that has happened to indigenous people, the provision of a physical connection test is an amendment that could easily have been drafted by the discredited historian David Irving. I appeal to the government and to the Senate to accept the Greens and Democrat amendments as fulfilling the need for a registration test which will sort out the various problems that have been enunciated.We cannot accept Senator Harradine's amendment because it is based, we believe, on a false premise. We do recognise that Senator Harradine's amendment does improve the government's registration test, but neither the government's test nor the improvement which Senator Harradine is moving fulfils the basic principle that I have enunciated: the principle that, in the end, there are spiritual and cultural connections to land which are far deeper than any physical connection and that sometimes those kinds of connections can last for 200, 500 or 1,000 years, as in the case of the Jewish people—an example I gave in my previous speech. I commend our amendments to the committee.16:51:002085Harradine, Sen BrianSenator HARRADINE6H4TASIND00—Madam Chair, I am at a bit of a loss to know where we are. I thought we were dealing with government amendment 66.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—We are dealing with government amendments 66 to 69.6H4Harradine, Sen BrianSenator HARRADINE—Since everybody has been speaking generally, let me speak fairly briefly at this stage. I reject completely the statements that have been made about my amendment and I will come to that when I move the amendment. My amendment is to ensure that indigenous groups or members of indigenous groups who have been locked out by pastoralists or by actions of government, or those members of indigenous groups who have been stolen—the stolen generation—will be specifically included in the registration test, even if there is not one of their group currently alive who at some stage, even as a baby, has set foot on the land.I said in the beginning of this debate that I am not prepared to see a diminution of the common law rights of indigenous Australians to their land. I stand by that. The fact that is being forgotten here is that for those indigen ous groups to be entitled to native title they must have connection and descent, and the land must not have been subject to extinguishment. That is the CDE test. I think people have forgotten that. We are talking about native title; we are talking about the decisions in Mabo; we are talking about decisions in Wik. If you look at those, you do need CDE. You need contact, connection and descent because, in Mabo, the basis for native title was the rejection of the legal fiction, terra nullius. That is what we are dealing with here.In order to ensure that we are giving an avenue to the genuine native title owners of the land we must establish some sort of registration test.DX5MARGETTSSenator Margetts—There is one. There is one built in.6H4Harradine, Sen BrianSenator HARRADINE—Senator Margetts says, `There is one.' After Waanyi, there is one? Have a word with persons within the indigenous communities and see how they feel about it. They feel that there should be a test which allows genuine native title holders to get into the first track.DX5MARGETTSSenator Margetts—As opposed to only those with spiritual connections.6H4Harradine, Sen BrianSenator HARRADINE—Wait a minute. I will come to the spiritual connection in a minute. Have a word to others who are interested, including miners, pastoralists, governments and country townspeople—or city townspeople, for that matter. Those who want to see the High Court decisions upheld want to see a situation where all bogus claims are prevented from being successful and the huge number of overlapping claims which beset those who are concerned about this matter not able to get through the threshold test. What is wrong with that? What is wrong with having a proper test?We are looking at a question now of what the High Court said. We do need to recognise that the High Court made it clear which indigenous people are entitled to a recognition of their native title. The High Court recognised that native title existed, and it recognised that native title should be recognised by the community where there is connection and descent to the people who owned that land in 1788 when the first Europeans came to this land.I now go to the arguments on the bill itself. In section 190B(5) the bill requires the registrar to be `satisfied that the factual basis described in the application . . . is sufficient to support the assertion that the native title rights and interests claimed exist.' Government amendment 73 expands that provision to spell out clearly that the factual basis on which it is asserted that native title rights and interests exist derives from the Mabo decision.In section 190B(6) the bill requires the registrar to consider `that, prima facie, each of the native title rights and interests claimed in the application can be established.' There have been negotiations about this and I have made it perfectly clear to the government that I am concerned that that is too restrictive. Government amendment 73 changes this to `some rights and interests'. Previously, as the government wanted it, it said `. . . each of the native title rights and interests claimed in the application can be established'. The government has said `Okay, we will change this to `some rights and interests'.Another amendment set up a register of those interests, including the spiritual interests and cultural interests of the indigenous group, which is very important to their connection to the land. I believe that this is a very significant amendment as it enables the native title claimant to be registered even if they are unable within the very strict time limits that are in the legislation to establish all of the claimed native title rights and interests.To further improve this situation, opposition N34—perhaps, Senator Bolkus, that could be moved separately when the time comes—allows the register to be amended after registration so that native title claimants, when they come to negotiate, are able to negotiate about all the native title rights and interests which are then registered. That not only gives certainty to the pastoralists, the governments and those who need to consider the matters but also it gives a degree of certainty to the native title claimants. That is good.The bill, in section 190B(7), introduces the traditional physical connection test which is not, strictly speaking, part of the common law test for the existence of native title. Unfortunately, many people seem to have been convinced that a requirement for a physical connection test is necessary to bring order into native title law. The amendments to the threshold test package which I have spoken about above will do far more to eradicate the spurious and scandalous claims than a physical connection test. When I said, `spoken about above', I meant the matters that I raised in this chamber in December. Honourable senators, if they are interested, can either go back to those or read the document entitled `Native Title Amendment Bill 1997: the Senate's amendments to the threshold test'. That is an eight-page document that was provided to me by my legal advisers.If the government is insistent on this test, it needs to be ameliorated to ensure that those indigenous people who have been the victims of the locked gate and stolen generation problems are not prevented from having their claims registered when they have not given up their native title rights and interests to the lands of their ancestors. It is important for us to receive examples of this. As yet, I have not received examples of that situation. It is important to have some examples presented to us so that support can be maintained.The government has gone some way to providing this situation in government amendment 73(7)(b). This does not go far enough given the fact that many of the victims of those policies and incidents, due to the scandalously low life expectancy among the indigenous, may no longer be living. Hence I propose to move N4 to add an extra generation to the government's physical connection test.I come to Senator Woodley. Of all those people about whom he speaks, is there not any one of that indigenous group who is alive who, maybe as a child, was on that area? We are getting down to the practicalities now. I believe it is important when we deal with legislation to have a good understanding of what is being proposed and examples of how the amendments that are being put forward are going to somehow affect the rights of particular individuals.The bill, in section 190B(8), does not add anything to the threshold test package. An application must not be made unless there is compliance with the matters set out in section 61A. However, this provision puts an obligation on to the registrar to ensure that the application does comply with section 61A prior to its being registered.The bill, in section 190B(9), required the registrar not to register a claim where the native title rights and interests consisted of or included ownership of minerals (Extension of time granted) where the Crown owned the minerals. Since it is possible that native title rights may include ownership of minerals in circumstances where the Crown at common law has ownership, that provision went too far. The government's amendment No. 73 inserts the word `wholly' to take care of the situation where the Crown's radical title to minerals may be burdened by native title.17:06:002087Bolkus, Sen NickSenator BOLKUSXE4SAALP00—Earlier I spoke in general about the issues involved here. I suppose, like Senator Harradine, I thought we were going through the amendments sequentially. I have already indicated what the opposition will be doing regarding amendments 66 to 69. I want to spend a few minutes considering the core issue of this part of the debate, and that is the threshold test—the registration test—and how it should operate.The core issue is this: who is a genuine native title holder? How can that be resolved through the process? As Senator Harradine has said, a number of us in this place, in the community and among the working group are concerned that we are able to distinguish the bogus, fraudulent and overlapping claims from the genuine ones but, in doing so, we must ensure that there is still a course open for those with genuine claims to be able to pursue them.In essence, the parliament needs to see how the High Court test in Mabo No. 2 can be best applied. When one listens to the debate, it is quite apparent that there are different views—those of the government; the opposition, which has a view shared with the Greens and the Democrats; and Senator Harradine. In a numbers sense, we are skating on thin ice and hopefully something will come up, through the evolving debate, and the votes.We think that the government's position goes too far. It is too restrictive and it is a curtailment of the High Court test. We are concerned that we not go too far in taking away common law rights and we are concerned that the government's proposal does in fact that. At the same time, we are concerned that it does not allow a course for some genuine claims to be pursued. Our amendments provide not just for the single test in the government's bill—the physical connection test, which is reflected in the government's amendment 73(7)—but ensure also that three tests apply in the alternative. The amendment that we are pursuing today is identical to the amendment that we pursued in the debate last November and December.We accepted then the test put up by the government at the time of traditional physical association—that is, that one member of the native title claim group has or previously had a traditional physical connection with the area. That is still the first leg of our three-part test. In the alternative, we felt it imperative that the parliament take into account the injustice related to those who had been locked out and were denied traditional physical association. It would have been quite unreasonable for the parliament not to have recognised the importance of factoring in the position of those who were dispossessed of their land by lock-outs or by other actions forced upon them. That constitutes the second part of our test.The third part of our test is, in essence, to pick up the words of Mr Justice Brennan in Mabo. For us, it is important that, if the parliament is to be seen to be reflecting the full impact of the common law, then the words of Justice Brennan should be reflected in legislation. I remind senators that he said:Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of the clan or group, whereby their traditional connexion with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence. In other words, there should be an avenue for them also to pursue native title claims.We are concerned that these two aspects of connection—the physical and, as a subset of physical, the denied physical, together with traditional association with the land—are still maintained in a threshold test which, at the same time, ensures that the bogus, fraudulent and overlapping claims can be dealt with. They are dealt with comprehensively in other aspects of the legislation already passed through the parliament and still to be considered here. One way or another, we are still concerned that this avenue be made available.Let us keep in mind also that we are not dealing with these three alternatives in isolation. We are dealing with them given that the legislation, as passed last year and as to be passed this year, ensures that the evidentiary burden is much higher than it was in the pre-existing legislation. There has to be establishment of a prima facie case. A whole raft of requirements were adopted by the Senate last year that ensure that, not just in terms of overlaps but also in terms of the burden of proof. At a very preliminary stage the burden is such that much of the flotsam and jetsam, I suppose it could be called, is not allowed to go to base one.Our position is to reflect that. Our position is to acknowledge that this test will work within a framework as has already been deliberated by the parliament. Our other objective is to ensure that we meet the requirements of common law. You are talking about potentially taking away the common law rights of people. No matter what anyone says or what interpretation one gives to the case in the High Court last week, it is fair to say that anyone who reads that case will come away with not just a feeling but an understanding that to take away one's common law rights would meet with a different response—a stronger response—from the High Court.We have to ensure that we do not do that. Senator Harradine says, `Well, give us an example where, by deleting the Mabo-Brennan test, you are denying people access to justice and access to their rights.' There are instances involving people on Palm Island in the Forties where, with careful consideration, it may very well be that those people would be denied access under either the Harradine or the government test. We say that, if the view is that no-one will qualify under this particular test, there is no cost to anyone if we play it safe and ensure that this avenue is available to people.There is some concern that the physical connection, as proposed by either Senator Harradine or Senator Minchin, is too restrictive. As I said, people in and around Palm Island in The Forties, for instance, may be denied access to native title claims because of the operation of the alternative test proposed. We will be pursuing our amendment that adopted last year. We see Senator Harradine's as a second best. We see the government's proposal as excessively restrictive and we will not be able to support that.17:14:002089Brown, Sen BobSenator BROWNQD4TASAG00—I thank Senator Bolkus for that clear exposition on why Senator Harradine's proposal is going to fall short of the mark. Senator Harradine's amendment cuts out a whole category that was available last year and that was argued by the committee, including Senator Harradine, on very cogent grounds. That category defends the rights of indigenous people to make a claim through traditional connection with the land, even if they have been locked out or fail to have a direct connection in the interim.Senator Harradine said that my amendment was to ensure persons who have been locked out will be specifically included, but he meant some persons who have been locked out will be specifically included. What his amendment does is water down, withdraw from and reduce even the tests that were voted on by the Senate in December last year. In particular, it is taking away from many people their spiritual and traditional connection, which is the foundation of their connection with the land. It is taking that away as a tenable and acceptable claim when people want to reconnect themselves with the land.Let us remember this: on all of these occasions, these people have not wanted to be disconnected. Their history is not one of wanting to leave. There is a terrible history involved here, and time and time again it has been visited on indigenous people and time and time again, through fraudulence, force or trickery, they have been removed from their land. Senator Woodley gave a gruesome account of how recently that has occurred on a large scale in Queensland, and we have to remember that.I do not hear Senator Harradine getting up and being concerned about spurious and scandalous claims from people other than the indigenous people involved in this situation. The pall of potential misuse of this legislation hangs across the indigenous people. Why should that be the case? Why is it that Senator Harradine is moving back from the position that was held just last year, that he defended just last year?I have two questions that I wish to have answered at the end of my comments. My first question is to Senator Minchin, who indicated on the weekend that a connection with the land is enough to give people the right to make a claim. I ask this: is any connection enough? Is a visit to the land enough? Can the government tell the committee if a visit to the land at some time in the past is enough to allow a traditional owner to make a claim?My second question is to Senator Harradine. After Diaspora, did the Israelites have no right to go back to Israel? Did the generations of disconnection disclaim them? Are you opposed to the process of this century which saw the Jewish people going back to Israel, the return of the Israelites? That is what you are proposing here, Senator Harradine.6H4HARRADINESenator Harradine—Was there no Israelite who had a physical connection test alive at that stage?QD4Brown, Sen BobSenator BROWN—Let us presume there was not. There are two standards here.6H4HARRADINESenator Harradine—Bullshit!QD4Brown, Sen BobSenator BROWN—Senator Harradine might say `bullshit', but I am saying that there are two standards here and he has just been discovered exhibiting them.BE4NEWMANSenator Newman—Madam Chairman, I raise a point of order. I ask that the senators withdraw that offensive word.6H4HARRADINESenator Harradine—I withdraw.QD4Brown, Sen BobSenator BROWN—I will withdraw the repetition of the comment, but it points out that Senator Harradine has discovered here—and it is something I maintain—that, if a spiritual connection, a historic connection, a longing which is clear and patent, is good enough for people at the core of Christian tradition, it is good enough for people at the core of Aboriginal spiritual tradition. To not see that parallel and to back one but not the other is to discriminate, and that is again what is happening here.I was at Doomadgee in the gulf country last year and I met up again with one of the wonderful members of the Gunggalida community, Wadgular Binna. As we were standing in the bush there, a group of us put to her that at that stage it looked like spiritual connection may be discounted, even as far as negotiations on mining were concerned. Her response was instant: `Take away our spirituality and you take away our hearts. That is taking the hearts out of us as people.' We should remember that. There are too many broken hearts in the last two and a bit centuries of the history of the indigenous people in this country. We have to do the best we can, because not one indigenous person is here to be able to speak up for that feeling they have for the land. We have to try to put ourselves in their position and, if we do, we will be found wanting.There are double standards being employed here and it is not a very nice process. Senator Margetts began with very, very strong words about cultural genocide this afternoon, but she is right. She is right that this is another process of dispossession, of killing culture, of killing connections, of killing hopes. I cannot understand it, and I have heard no argument here as to why we should retreat from the minimal position that the Senate accepted in December.17:22:002090Harradine, Sen BrianSenator HARRADINE6H4TASIND00—May I respond, and I do apologise to the committee for the remark that I made. I do feel that Senator Brown has misunderstood totally what native title is all about.QD4BROWNSenator Brown—A mutual misunderstanding, it seems.6H4Harradine, Sen BrianSenator HARRADINE—Let us test that. This bill is not about granting native title. This parliament is not about granting native title. To do that, we are virtually saying that we in this parliament have to act paternalistically to indigenous people in Australia who have native title. Even the High Court did not grant them native title. It recognised that they had native title.QD4BROWNSenator Brown—But you're taking it away.6H4Harradine, Sen BrianSenator HARRADINE—In this particular regard, some people are talking about a traditional physical connection to land. That traditional physical connection may have commenced at the beginning of this century, and you are saying that you will put an `or' there so that those people are entitled to a native title to that land. You are not going to get such a claim recognised because it has to fit within Mabo. That is the whole point about it.Mabo is essential to the success of a native title claim, absolutely essential. To say that Mabo or a physical connection means you could get registration, even if you cannot satisfy Mabo, is a nonsense. Of course you cannot. You have to prove CDE—connection, descent and that extinguishment has not taken place on the land. Let us get that clear in our heads. That is what it is all about. If you are operating on a basis of misunderstanding there, as I suspect that you are—QD4BROWNSenator Brown—Well, you're wrong.6H4Harradine, Sen BrianSenator HARRADINE—Have a look at what you have been saying over this period—and I will be happy to have a look at the Hansard . You are really not understanding that Mabo is essential to the success of a native title claim.Let us be perfectly clear: my amendment will ensure that those dispossessed in the last two generations will be able to be registered. That is what my amendment does. You, Senator Brown, through you, Madam Chairman, are going to vote against that. When the time comes—and we will deal with it then—you are going to vote against that.QD4BROWNSenator Brown—You're going to vote against yourself.6H4Harradine, Sen BrianSenator HARRADINE—I am moving the amendment. I am not likely to be voting against it. I refer to a point that Senator Woodley made, and I just ask him about the areas and the peoples he was concerned about. The committee has to ask itself: is there no-one alive today who lived on that land? That is what you have to ask yourself. Is there no-one alive today who actually lived on that land, even if they were an infant and are now living a thousand miles away?It might be desirable for the committee, rather than toing and froing, to get to a situation where we can have an amendment before us that we are voting on. As I understand it, the amendment that is before us is government amendment No. 66, is it not?10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Jacinta Collins)—It is 66 to 69.6H4Harradine, Sen BrianSenator HARRADINE—Can we get rid of that, and then I am happy to debate the issues when they come forward?17:28:002091Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I hear Senator Harradine's appeal. I have been seeking to debate all of the amendments, or at least those that hang together, because then, when we come to them, we can move through the voting fairly succinctly. If that is not so, I am happy to be guided by other people.Senator Harradine did ask me a question about whether there were any people alive. Of course there are, otherwise they could not make a claim. The problem is, however, Senator Harradine, as I was saying, in making the physical connection the fundamental test, even going back a generation, you still do not solve the problem for those people I was speaking about. Take the Mapoon case: you have different groups of people, all of whom have a physical connection, making different claims, and some claims were not being allowed because even the degrees of physical connection were being debated. That was the problem.Let me see if I can help us with a way through. The Democrats agree there must be a registration test but the real problem is the resourcing of representative bodies. That is where the problem has come about in trying to apply the registration test where we have had overlapping claims and, in Senator Harradine's words, some bogus claims as well. Where even the 1993 act itself has been used and the representative bodies have been able to operate properly, they have been able to resolve those overlapping claims.Take the example which is quoted regularly of the whole Kalgoorlie area and the goldfields. Just last week the Goldfields Land Council pointed out to me that by using the 1993 act they had been able, through negotiation, to collapse the 57 overlapping claims into two and in fact are now, through discussions with the mining companies in that area, on the point of signing agreements very beneficial to all the parties involved. So if the representative bodies are properly resourced, then even by using the 1993 act they are able to resolve the whole problem of overlapping claims. But the resourcing is critical.Even in the 1993 act, bogus claims are knocked out. `Vexatious and frivolous claims'—I think is the wording—are not allowed. There have been vexatious and frivolous claims made—I have no doubt about that—but they are being dealt with, and they can be dealt with under the 1993 act, let alone under any amendments that we might propose.Senator Harradine is right—many of these claims will not succeed simply because the native title has already been extinguished. I would point out that Mabo actually also said that the doctrine of terra nullius was null and void. By abolishing that doctrine, in one sense the whole of the continent should be open to claim. But, of course, as we know, the 1993 act made it quite clear that many parts of the continent are not subject to claim and native title has been extinguished in many parts of it.I do not know whether I want to open up the debate about the Jewish people, but the point I was trying to make was that, again, a physical connection is not required of people who want to return to the state of Israel. The ancestors of some of those people have been separated for 200, 500, a thousand, two thousand years. In fact, you would have to go into myth and legend if you tried to trace any connection between the current state of Israel and the original tribes of Israel. Nevertheless, Jewish people have a very strong connection. It is not physical connection; it is cultural connection. It is a connection of spirit; a connection of race, if you like.The same problem, however, exists in many other parts of the world. The dispossession of the Scots, the Irish or the Welsh from their lands has never been properly settled. Those issues remain today. It is only as we negotiate with people properly and sit down with them that we begin to solve those problems. I am glad to see that, at least in relation to Scotland and Wales, there are now ways through after 700 years in some cases. Unfortunately, the Irish problem remains with us.What we are saying is there are historical examples which give us pause. There is no direct connection between them. But what they say to us is, in terms of history, we need to learn the lessons that you need to deal with people with respect and deal with them properly. We need to negotiate outcomes which people can own and live with. Otherwise, the sore will continue to fester until finally it has to be dealt with. That is my contribution.17:35:002092Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Senator Harradine mentioned in this debate this afternoon that someone would have had to—and I took it down—`set foot as a baby on the land.' Schedule 2, part 1, on page 206 of the Native Title Amendment Bill 1997 [No. 2], relates to physical connection. Proposed subsection (7) states:The Registrar must be satisfied that at least one member of the native title claim group currently has or previously had a traditional physical connection with the area covered by application.So we are not talking about `set foot as a baby'; we are talking about lived in what is considered to be a traditional physical connection with the area. I am wondering where this might lead to in the end. This might lead to the actual footprints—the tracks where people stood. Maybe we will get so tight in revisiting this over time that only those places which were regularly trod will become the areas where registration is accepted. I believe that it is a problem.Over time concern has been expressed to me by a number of people, including the very people with whom Senator Harradine danced the other day. Gladys said to me, `I hope Senator Harradine understands this is a dance about our land and our culture.' I am not sure he did. The information I have received from the Mirimbiak nation's aboriginal corporation talks about the cases in Victoria, Victoria having a history of close occupation. I will read some parts from this letter:Further, it may affect the way national laws regarding Indigenous people are implemented in Victoria. It may affect the way the registration test is implemented. Therefore the test itself should be carefully drafted to prevent perpetuating this stereotype.. . . . . . . . .This requirement emphasises the government's conception of native title as something that purely exists in the physical domain. It emphasises the need as expressed by the State Government for native title holders to prove physical connection and presence on land, before any claims to spiritual connection will even be considered. Victorian Aboriginal people are not seen as having been on the land—"they have all been assimilated".It goes on, and this, I believe, is a statement from the court:It may amount to a pre-judgement about the nature of native title in Victoria.It is inappropriate, before trial, for the nature of native title in Victoria to be pre-judged by the imposition of a threshold test, which may impose the wider community's pre-conceptions of what is Aboriginality. This will have particular pernicious effects in Victoria.It is not the only way to achieve that end.The most appropriate means of addressing the "problem" of over-lapping and ambit claims is by means of a well resourced, strong, and accountable—both legally and culturally—representative body. Mirimbiak is part of the way to achieving these aims with Victoria's native title holders. To date, there are no overlapping claims in Victoria.I just wondered if Senator Harradine did a statistical analysis. I do not think this is about numbers, but it seems to be the way Senator Harradine is presenting it. If you did a statistical analysis of those potential claims which may now or retrospectively be either questioned or declared invalid, are these the claims that are likely to be associated with overlapping claims? I have never argued that overlapping claims are a problem per se.YE4BOSWELLSenator Boswell—Why?DX5Margetts, Sen DeeSenator MARGETTS—I have mentioned this on several occasions. The problem that existed in 1993 was the fact that the bill was drafted for white land law. It was therefore impossible to assume that Aboriginal land law would fit neatly and conveniently within European or white land law. It is our expectations of land connection and land ownership about Aboriginal people which, on a number of occasions, have created the problem. There are overlapping land associations depending on the situation, depending on the season, depending on the clan group. That is Aboriginal culture. There are times when people speak for themselves. There are times when people speak for wider groups. There are times when they cannot speak for their land connections without particular circumstances being involved. There are circumstances where different groups can speak for the same area of land. They are legitimate multiple claims.Aboriginal people are being required to deal sometimes with hundreds of mining claims on the land for which they speak. We do not seem to think that that is a problem. We do not extinguish mining claims for that reason. I believe the problem is, in many cases, firstly, the way some cowboy corporations are acting and misusing the act and, secondly, the resourcing that is available not just to land councils but to other representative bodies—they could be corporations or other Aboriginal bodies—who are trying to deal with the issues and represent the people for whom they are set up.This is important. When I spoke last on this issue, I talked about the situation in Western Australia. I talked about a situation where the health of a particular person or the failing health of a particular person may, if this bill goes through in this form, be the defining condition of whether or not a claim is recognised. I have a statement I would like to read from the Swan Valley Nyungah Community, a statement concerning their spiritual connection to the land and the 10-point plan. They say: The Spiritual Beliefs cannot be separated from the Aboriginal People or the Land.The Spiritual Connection to the Land is a given thing to us by Birthright and cannot be changed.The Spiritual Beliefs are our Title Deeds to our Land, and we the people give no given consent to no Aboriginal groups or Labor or Liberal or any politician to say that they can do this to us—to try and separate our Spiritual Beliefs from us and the Land and our Land Title Claims.It is not a question of one generation here and now. It is begun from the Beginning of Time with our very existence through all generations from then to now and it doesn't change.The Spiritual Beliefs, the Spiritual Dreaming cannot be taken out of the Land just because people wish to do so now.They have no authority, they have no given consent from the Aboriginal Nation as a whole.Land Title Claims comes from within the Land and that is where our Life begun.Our Spiritual Beliefs are the Roots of our Land Title Claims and our Beginning and they are not allowed to be ignored or not considered. No-one has any authorisation to alter or take our Spiritual Connection out of the Native Title Act.OUR SPIRITUAL BELIEFS, OUR SPIRITUAL DREAMINGS ARE THE ROOTS OF OUR LAND TITLE CLAIMs.It is important to realise that that, for many people, is the most important basis. What we would be saying in relation to a registration test is that you do not get over the first hurdleunless we ignore the overall importance of your spiritual connection. What we are saying if we vote for the government's position or Senator Harradine's amendment is that the pivotal point will be your level or your group's level of physical connection because you will not get any further unless that has been proven. I believe this is basically a disrespect of the importance of the spiritual connection to land. Simply dealing with figures, simply dealing with what is considered to be legal outcomes and simply putting in some kind of statistical argument will never overcome that huge gulf that seems to be existing between the government and what many people are telling us on this issue.I said to Senator Harradine—and he interjected at the time—that there is a registration test. If the portions of the bill which deal with the physical connection test are knocked out, there will still be a registration test. It may not be an ideal one, but there will still be a registration test. There are many hurdles for people to meet when making native title claims and the government has made sure there are as many as possible. However, it is simply not conscionable to suggest that to register and to gain the right to negotiate Aboriginal people have to pass a physical connection test for all and more of the reasons we are giving.When we do get to that portion, I will not be moving all the Greens (WA)-Democrat amendments because we would like to concentrate on those areas which are most salient to the debate today. The first area where I will be moving an amendment is when we get to schedule 2, item 63. I would like to ask people to consider in the meantime dealing with Senator Harradine's amendment first, if possible, so we get a clear picture of where the Senate is going on that, because it is quite clear statements have been made by Senator Woodley now and by the Greens in relation to our voting pattern on those issues.17:47:002094Harradine, Sen BrianSenator HARRADINE6H4TASIND00—Again I think there has been a misunderstanding of what we are all about. We are not saying what native title claimants should receive other than a statutory provision which gives them access. We are actually talking about statutory procedures which, if there is a registration of a claimant group, will enable that claimant group to have access to the land and to a right to negotiate over the registered interests, including spiritual or otherwise. The government is saying—it is rather insistent upon this—that those statutory procedures should be based on certain facts. In negotiation with the government, it has now placed before the Senate some amendments which will, to a certain extent, ameliorate the situation within the bill. So we are not determining what indigenous group could achieve native title.I have asked continuously in discussions here and around the place for an example. Senator Margetts said that the people with whom I danced would be disadvantaged. Of course, they would not be disadvantaged.DX5MARGETTSSenator Margetts—No, Brian, that's not what I said; I said they were hoping you would understand the importance of their spirituality. Well, obviously, you haven't.6H4Harradine, Sen BrianSenator HARRADINE—I do understand.DX5MARGETTSSenator Margetts—I didn't quote them as an example of not having physical connection, at all.6H4Harradine, Sen BrianSenator HARRADINE—I apologise. May I say to you that I do have a great deal of regard for their spiritual and cultural connection to the land and so did the High Court.What is more, no credit was given to me for negotiating the registration of interests which makes it certain that those persons can have the right to negotiate in respect of those areas of land which are important to their spirituality and to their customs. Nobody has said, `There's a tick for Harradine.' The government has acknowledged that and placed it now before you as an amendment. It is a significant improvement, might I say, and there will be a number of others as a result of hours upon hours of discussions and examination of the matter. I have also asked, `Give us an example of a group of indigenous people who—DX5MARGETTSSenator Margetts—Victoria—I gave it to you; Mirimbiak.6H4Harradine, Sen BrianSenator HARRADINE—No, just a minute. I asked for an example of a group of indigenous people who will not be able to pursue a native title claim. The group which Senator Woodley spoke about would be able to meet the test that the government has applied. But let us take as an example a group who are relying only on a traditional cultural connection with certain land upon which there is some other group established at the present moment and say that they can—and I have not been given any example of that, but let us say that they can. There is nothing to prevent those people from applying to the court and proving their native title claims. There is nothing in this legislation that will prevent them from doing that.DX5MARGETTSSenator Margetts—Except maybe a lot of money, Brian.6H4Harradine, Sen BrianSenator HARRADINE—I am trying to deal with the situation which we face by the Mabo and the Wik decisions and which we face by the government legislation. I am trying to see that justice is done in the establishment of statutory procedures which will give a degree of certainty to the native title claimants and to other stakeholders. I think that is what we should be aiming at. I say again that, when the time comes, you will have to presumably justify why you are not voting for an amendment which covers the stolen generation or the locked gates situation. Again, I have not been given any examples of those people who would not now come within the test being considered by the Senate, but if there are—and I am assuming there may well be—I am proposing this as at this particular stage.17:53:002095Bolkus, Sen NickSenator BOLKUSXE4SAALP00—The real issue here is obviously between us on the non-government side. It is interesting to see that Senator Minchin has not really had to participate too much in the debate for the last few hours. The choice really comes down to Senator Harradine's amendment or Labor's amendment as to whether we apply a threshold test which reflects the common law.I think if we are to have a clear understanding of where we are going here, it would be very fair to say that there is a mile of difference between both the Harradine and the Labor amendments and the government's. I think we need to place on the record that there is an enormous chasm between the alternative proposed by the government and the alternative proposed by the opposition parties. We will move ours and will stick with ours because we believe that it more fully reflects the letter of the common law. But I for one have been trying to meet Senator Harradine's challenge in terms of trying to name one group of people who would be denied access under his test as opposed to the one proposed by Labor. It is important for us, and I still maintain that it is important for the parliament, to be seen to be implementing rather than curtailing the common law in particular in this area.When it comes to the vote here, we all should recognise that there could be an enormous injustice if both the non-govern ment tests go down, not just an enormous injustice but enormous injustices. For instance, earlier on I said that in the Palm Island case, people moved from western Queensland. The Wangkangurru people from the south-east corner of the Simpson Desert were moved in the 1940s. They know the sites; they are a very traditional people and they are imbued with a traditional connection with their country. They associated, and continue to associate, themselves with it, but their parents have died.In those circumstances where parents have died, they would not meet the government test. They would meet the opposition test, but they would also meet the Harradine test. It is important for us to recognise that, if neither of these two tests gets through the Senate, an injustice will be perpetrated on these people. So I say there is probably a marginal difference between the Harradine and the opposition tests in all practicality. We believe our test is a—DX5MARGETTSSenator Margetts—Oh!XE4Bolkus, Sen NickSenator BOLKUS—Senator Margetts, go through them all. I will go through a few more in a minute. The fact is that there is some difference between us and Senator Harradine, but there is a mile of difference between Senator Harradine and the government, especially if you are from the south-east corner of the Simpson Desert still trying to maintain a claim. Their land is now under an Aboriginal Land Act Queensland claim. As I have said, they would be protected under either the opposition or the Harradine proposal. They are one group.People on Great Keppel Island are in the same situation; they were moved not in the 1940s but in the 1920s. So if they had one person from that claim group who could meet the Harradine test, they would still be able to pursue their claim. It would not be pursuable under the government test. Fraser Island is another one. As to Fraser Island, it is a national park and, as a consequence, I do not know that they would have any claim right under the act. They would not. In respect of those people, they might have been moved in the 1890s, closer to the turn of the century, but their rights have already been dispensed with—I suppose that is the best way to say it—by legislation.Let us not vote on this without appreciating that there is a big difference on the ground between the two alternative tests and the government test. The test that we are putting up reflects Brennan in Mabo, but Justice Brennan in Mabo also made reference, as did other justices, to the tide of history washing away the connection. That is something that we also need to take into account if we were, for instance, to take the view that, if the opposition test was not to succeed, nothing else is anywhere near as good as that; therefore, we will vote against all other provisions.I suppose I am calling for both the Greens and the Democrats to keep in mind the enormous chasm between the Harradine test and the government test. We moved the Mabo-Brennan test last time. We still think it is a true reflection of the law and we think it is a better expression of the law, but if that test is not successful in the ensuing votes, then we will have to have a very close look at the Harradine test—in particular, to look at the injustices that would be perpetrated on claim groups if a more reasonable test than the government's is not successful.18:00:002096Brown, Sen BobSenator BROWNQD4TASAG00—It is extraordinary to make a call to the Greens and Democrats but not to Senator Harradine on this. It is extraordinary to in some way or other feel that the wider parameters that the amendment we are pursuing with Labor gives to ensure that Aboriginal people are not cut out in being able to register a claim is not a better position than the constricted one that Senator Harradine brings forward, but then to say that it is not Senator Harradine that the appeal should be made to. The Labor Party has brought forward the position that Senator Harradine took in December last year. Senator Harradine is sliding away from it and Senator Bolkus says, `Hey, Democrats and Greens, let's slide too because all will be lost otherwise.' How about Senator Bolkus appealing to Senator Harradine to hold his ground for once?XE4BOLKUSSenator Bolkus—I've done that for a while. QD4Brown, Sen BobSenator BROWN—How about doing it in the chamber if you have been doing it for a while? How about asking him to have some resolve as far as the rights of the indigenous people are concerned? Senator Bolkus said that in the case of Great Keppel Island, where the people were dispossessed in the 1920s or thereabouts, if one person has still got a connection through a parent who was brought from Great Keppel Island they will be right. The question immediately becomes: what happens if that one person dies?XE4BOLKUSSenator Bolkus—We had better hurry up and pass the bill.QD4Brown, Sen BobSenator BROWN—It is not a trite matter, it is a very important question.XE4BOLKUSSenator Bolkus—Of course it is important.QD4Brown, Sen BobSenator BROWN—It is not a case of hurrying up and passing the bill. It just shows you how brittle it is to draw a dividing line, as Senator Harradine is doing—and one that is so close.XE4BOLKUSSenator Bolkus—What is the difference?QD4Brown, Sen BobSenator BROWN—Exactly right, and that is why Senator Harradine's position is not the same as or close to what we have got. It is a very big concession to the government, against the interests of the indigenous people. Without knowing it, you have argued that very cogently. If one person dies out of a clan group it loses its right to register a claim, even though the clan group as a whole has a tradition and an attachment to their island, to their land. Why should we be cutting those people out through an amendment that Senator Harradine has brought forward to try to make the government see this as being more acceptable? Why shouldn't we leave it to the court? Why shouldn't we leave the registration available to people who have a legitimate claim? Why shouldn't they have their day in court? These are all legitimate questions.I again put to Senator Minchin, who is representing the government, the question I asked earlier—and I will keep going until I get an answer—5F4CALVERTSenator Calvert—If you give him a chance to get up he might be able to answer a few questions. QD4Brown, Sen BobSenator BROWN—Senator Calvert, you have been noticeable by your failure to get up at any stage in this process today, so you should not be giving injunctions to me. The question to Senator Minchin is: on the weekend on Channel 7 were you saying that any visit to traditional land is going to be enough to be a connection which will give that claimant the right to proceed with registration? If you were not saying that, what is the level of visitation that is required to give a traditional connection with the land?18:04:002097Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I would not mind saying a few things just to interrupt the conversation going on on the other side of the chamber which does not seem to involve the government much. I want to bring the debate back to what we are really talking about. It does seem to be premised on an assumption that this registration test is the gateway to the pursuit of a native title claim when, of course, it is not.The act sets out a procedure for the acceptance of applications for determinations of native title with the Federal Court. It is a very simple procedure. There is no physical connection test and claims can be accepted and pursued in order to get a determination and then have declared native title rights exercisable under an order of the Federal Court.What we are talking about here is when, a claim having been accepted by the Federal Court—and therefore able to be pursued in the court—we move to the next stage, which is reference to the tribunal and the question of whether it is registered by the tribunal in order for the claimants to have access to considerable statutory rights—not common law rights but statutory rights; that is, the right to negotiate a set of procedural rights not generally available to any other titleholders in Australia, created by this parliament and, as I say, statutory in nature.What we are proposing is a statutory test in order to determine which claimants who have had their claims accepted by the Federal Court for determination should then, in addition, have access to this very generous set of procedural rights called the statutory right to negotiate. It is appropriate that there be a rigorous test. Everybody seems to agree on that. The question is: how rigorous? What we have said is that, in relation to physical connection, the registrar needs to be satisfied that at least one member of the native title claim group currently has or previously had a traditional physical connection with any part of the land or waters covered by the application.In answer to Senator Brown, it will be a matter for the registrar to determine whether he or she is satisfied that there is at least one person who currently has or previously had the traditional physical connection with any part of the land or waters covered by the application. That is entirely a matter for the registrar. As to the question of whether native title is determined or not, that is a matter for the courts. We leave it entirely to the courts to apply the Mabo test. The Mabo test was that they have maintained their traditional connection—and that means from the time of settlement—and that the native title has not in the meantime been extinguished by an act of government. That is entirely a matter for the courts to determine.Of course, once a claimant has a determination—having passed the court test—and is a determined holder, then they automatically have the right to negotiate. They do not have to go through this process; this is a process for claimants. Once they are determined holders they automatically have the right to negotiate in respect of any future mining or compulsory acquisitions.I am happy for you all to argue among yourselves about this, but you have to premise your argument on what this test is all about; it is about access to a statutorially created set of procedural rights that are not part of the common law. The High Court has said nothing about it, nor has it created the statutory right to negotiate. This is a creature of this parliament. It is appropriate that this parliament set a reasonable threshold for access to these procedural rights, remembering all the time that it is entirely a matter for the courts to determine what traditional connection actually means.I think most Australians probably presume that what the High Court was talking about was some sort of physical connection. We are not saying that that is the case. It is left to the courts ultimately to determine, case by case, whether traditional connection is a requisite for a determination that people hold native title. That is a matter for the courts. All we are saying is that, if someone wants access to this set of procedural rights which is not generally available to anyone else—the person is only a claimant, remember; the person has not had a determination that they actually hold the native title—then one member of the group has to satisfy the registrar that they currently have or had a connection. The obverse is to say that someone, as a claimant group, can have access to this set of procedural rights even though not one member of the claim group has ever had any connection to any part of the land in question. That is what is being proposed. That is where we draw the line.18:09:002098Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—It has been said to me on many occasions by a number of indigenous representatives that one of the few `benefits' of the legislation so far is the right to negotiate. This is what we are talking about. It is not a small thing. It is not just something on the way. It is not whether or not someone has their name registered; it is whether or not someone is cut off from the right to negotiate. If people are denied the right to negotiate on land to which they have a spiritual belonging, it is a catastrophe. If people do not have the ability to negotiate on the land to which they belong in a truly spiritual way, if they do not have the right to negotiate because the government has a very narrow idea of what Aboriginal culture and spirituality in connection with the land is all about, that is a catastrophe. That is what we are arguing.I need to ask Senator Harradine or even perhaps Senator Bolkus a question. Given the complex nature of the culture of various Aboriginal nations around this continent, what happens when people cannot speak of their parents? What happens in those situations where the law of Aboriginal people requires that they cannot speak of their parents or other relatives once they have died? What may be necessary to establish physical connection in the test that Senator Harradine has suggested? What happens in a situation where a person's parent—mother or father—is not their birth mother or father through circumstance or through culture? How does the government expect a court to deal with such a situation when the court will, according to this bill, be instructed not to take these issues into consideration in any greater way than it would in the case of any other titleholder?How do we deal with the intricacies of Aboriginal culture when Aboriginal families are not necessarily made up in the same way as we would define `family' in white Australian culture? How do we deal with the situation where people cannot speak of dead relatives? How will Senator Harradine's amendment in relation to physical connection one generation, two generations or seven generations later, deal with that?18:12:002098Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I think it is fair for me to give an answer to Senator Harradine's question to me some time ago. I do not know if this does answer the question because I am again having difficulty fixing the parameters of this debate.An example, Senator Harradine, of a group which I do not think would pass your test is the Turrbal group. The Turrbal group of people inhabited Brisbane in the early days. We are now beginning to uncover some of their story, particularly because of Tom Petrie, one of the early settlers of Brisbane, who recorded a lot of the history of the Aboriginal people.The Turrbal people were massacred in Brisbane in the 1850s and were thought to be extinct. But, because we have been able to uncover this history, it is known that Maroochy Barambah, who is recognised by all the Aboriginal people of south-east Queensland as being one of the Turrbal people, is a descendant—I only have her English name—of Kitty. Kitty is a Turrbal woman who escaped that massacre and fled to a part of south-east Queensland near the town of Kenilworth. She has made a claim. It is not a claim over people's backyards; it is simply a claim to enable the Turrbal people to have some participation in decision making in relation to some of the places of special significance in and around Brisbane. The Turrbal people would like to have a particular place set aside as a keeping place for their artefacts. I am not sure whether Maroochy Barambah would ever qualify in a physical connection test because of the break in the generations, although we are now beginning to find the links.The other problem we have in Queensland is, sad to say, that many of the files in the department have disappeared. Whether that is deliberate or not, I do not know—I suspect it is. Some of the files which were previously used in research have themselves disappeared in recent days. This is one of the problems we face. I do not know whether that satisfies your question, Senator Harradine, but those are the problems we face.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Chapman)—The question is that amendments 66 to 69 be agreed to. Those of that opinion say aye, those against no, the ayes have it. Senator Brown, you are too late.QD4BROWNSenator Brown—No, I am not too late.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—I had already put the question, as far as I was concerned.QD4BROWNSenator Brown—I am prepared to allow it to be put, but I have to note here that a vote is not taken until a declaration has been made. I was on my feet and I should be acknowledged. It is very important that members are acknowledged and are not cut out on any specific point. It is not for the chair to know what a member is going to put to the committee.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Do you want to let it go or do you want to speak, Senator Brown?QD4BROWNSenator Brown—Let it go.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—The amendments are carried.18:16:002099Brown, Sen BobSenator BROWNQD4TASAG00—I put it to you, Senator Minchin, that there is now some confusion as to what the government means by a traditional connection. You still have not clarified whether a visit to a traditional area by a member of a claimant group is sufficient to have established a physical connection. Can you outline to the committee what the government's intention is, as far as its legislation is concerned, in requiring visitations in establishing traditional connection?18:17:002099Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I would have thought that Senator Brown would be pleased to know that the government is not seeking to circumscribe the registrar's proper discretion by setting any sort of arbitrary requirements of that kind. It is for the registrar, as an independent official of the Native Title Tribunal, to satisfy him- or herself strictly in accordance with the act as passed by this parliament; that is, the registrar must satisfy him- or herself that at least one member of a claim group currently has, or previously had, a traditional physical connection with any part of the land or waters covered by the application. That discretion is left to the registrar. The registrar is a statutory official and, based on the contents of the application and all the information supplied with the application, and on all the other matters that are required to be put before the registrar, the registrar must then meet his or her statutory obligations.We are not seeking to circumscribe it in any way, other than in what is in the proposed subsection 7 as to the requirement. I would have thought you would be satisfied and pleased that we are not seeking to circumscribe it or put any arbitrary conditions because it will depend, case to case, on the land being claimed and the nature of the native title rights being claimed, et cetera. So the discretion is left to the registrar.18:18:002099Brown, Sen BobSenator BROWNQD4TASAG00—On Channel 7 on the weekend the minister said that it is an unreasonable and unworkable position for a claim to be registered, even if not one member of the claim has ever had any physical connection to the land claim. Were you saying there that it is a reasonable and workable proposition for a claim to be registered if one member of a claim group has ever had any physical connection to the land claim?18:19:002100Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—The obverse of what I said is that, according to the government test, it is reasonable for a claim to be registered—subject to satisfying the other parts of the registration test, of course—where at least one member of a claim group can satisfy the registrar that they have now, or previously had, a traditional physical connection with any part of the land or waters covered by the application. From our point of view, we think it is an entirely reasonable proposition to put that that is a minimum requirement. As I say, the government regards this bill as a compromise.I had plenty of people saying, `The right to negotiate should not apply to anyone but determined holders, not to claimants.' No, we are allowing it to apply to claimants. Others said, `Everybody in the claim group should have a current physical connection.' No, we did not say that. Many have said, `Why are you acknowledging any past connection?' And so on. From the government's point of view, this is an entirely reasonable proposition. All we are saying is that to pass this part of the test, the registrar has to be satisfied that just one member, at some stage in their lives, had that traditional physical connection with any part of the land or waters claimed. This cannot possibly be described as an onerous test, given that we are not talking about whether or not their native title claim can be pursued in the Federal Court. Of course, it can.It is up to the court to decide, in terms of having a determination of native title, what sort, if any, of traditional physical connection is required. That is a matter for the courts. All we are saying is that if you have not already had a determination—remembering that, if you have had a determination, this does not apply to you and you get the right to negotiate—your status is as a claimant and there is this quite minimal physical connection test to be satisfied.18:21:002100Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I wonder whether I could get agreement from the committee, when we do reach schedule 2, item 63, that we put Senator Harradine's amendment first.18:21:002100Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—Senator Harradine's amendment is premised on the government's amendments to the registration test. I do think, as we have discussed the amendments in general terms, that it makes sense for the government amendments to be put first so that we know what bill we are dealing with—that this is the government's bill—and then for other amendments to be dealt with sequentially. Senator Harradine's amendment is premised on the amendments put by the government, which, I think it has been said, are more acceptable to the Senate than was the original government position.10000CHAIRMANThe CHAIRMAN—Minister, you may care to move amendment 70.18:22:002100Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I move:(70) Schedule 2, page 200 (after line 9), after item 60, insert:60A After paragraph 186(1)(f)Insert:; (g) a description of the native title rights and interests in the claim that: (i) the Registrar in applying subsection 190B(6); or (ii) a recognised State/Territory body in applying provisions equivalent to that subsection; considered, prima facie, could be established.I am suggesting that we deal with each of the government's amendments first and then move perhaps to Senator Harradine's amendment.18:22:002100Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I seek a point of clarification there. I thought we had put amendments 66 to 69. Was that finally voted on?10000CHAIRMANThe CHAIRMAN—Yes.XE4Bolkus, Sen NickSenator BOLKUS—It wasn't 66 to 76?10000CHAIRMANThe CHAIRMAN—No. We are now dealing with government amendment No. 70. You have a proposed amendment to that, Senator Harradine.18:23:002101Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I wish to respond to Senator Woodley's question about the Turrbal people. The question there is whether or not they can meet the Mabo test. On the facts that have been presented it is not at all clear to me as to whether, after the 1850 massacre, they have lost their traditional connection with the land.HX5WOODLEYSenator Woodley—I don't know.6H4Harradine, Sen BrianSenator HARRADINE—No, but if they have lost the traditional connection with the land, they are not likely to be determined as native title holders under the Mabo test, because the Mabo test indicated that if they lost traditional connection—DX5MARGETTSSenator Margetts—Physical—you're talking about the physical connection.6H4Harradine, Sen BrianSenator HARRADINE—No, Mabo was talking about a traditional connection to the land. If they have lost that—DX5MARGETTSSenator Margetts—Senator Woodley was talking about the physical, not the spiritual—10000CHAIRMANThe CHAIRMAN—Order, Senator Margetts!6H4Harradine, Sen BrianSenator HARRADINE—I see. Well, if the person could meet the physical test, has she visited the land or whatever—DX5MARGETTSSenator Margetts—You are missing the point, Brian—the spiritual connection.6H4Harradine, Sen BrianSenator HARRADINE—Through you, Mr Chairman, let us make it perfectly clear what Mabo decided, because this is essential for an understanding. If they have lost a traditional connection with the land, then under Mabo they would not be determined as native title holders.DX5MARGETTSSenator Margetts—She may have a traditional connection—a traditional spiritual connection. We don't know.10000CHAIRMANThe CHAIRMAN—Order, Senator Margetts. It is not appropriate for you to intervene in the debate in that way.6H4Harradine, Sen BrianSenator HARRADINE—Through you, Mr Chairman, that includes spiritual connection, laws and customs and so forth. I am just trying to respond genuinely to a question that I was asked by Senator Woodley.18:25:002101Bolkus, Sen NickSenator BOLKUSXE4SAALP00—Regarding opposition amendments RN34 and RN35, Senator Harradine requested that we deliberate on them separately, and I am quite happy to do that. In respect to both amendments, we are trying to accommodate a situation where you might have, for instance, multiple claims in a particular claim. As the provisions now stand, in those circumstances there is no capacity for an ongoing consideration of the claims separately. We are concerned to ensure that where a registrar makes a determination in respect of some of the claims the registrar does have sufficient flexibility to, for instance, defer consideration of some of the claims or all aspects of the overall application and deliberate on them at a later date. That is why we will move the amendment to reflect the words `continue to consider' in RN35 and `thereafter considers' in RN34.There has been what I would claim to be a typographical error in respect of RN34. The amendment says that we replace the words `consider, prima facie, can be established' with the words `or thereafter considers, prima facie, could be established'. I will move it in an amended form so that it can read `or thereafter considers, prima facie, could be established'. In that way we use the same word as in the government's legislation. Otherwise it might trigger a debate about different levels of evidentiary burdens and so on. So RN34 replaces the words `considers, prima facie, could be established' with the words `or thereafter considers, prima facie, could be established'.I do not think there is a need to make any such change to RN35. We are trying to pick up on a situation where a registrar may determine that there is a need to come back to a particular application. The law does not adequately provide that. This flexibility is something that we think is important. We would hope that even the government would support it.18:27:002101Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I regret to say that I do not think the government can support this because of what may well be the practical implications of it. It invites claimants to continue to seek forever and a day to have their registered claim amended in order to incorporate particular native title rights and interests they have claimed which have not been prima facie established in the first instance.I do not know how long that process would go on. Remember that you are dealing with hundreds of claims. If you have the registrar constantly in a process of having to revisit claims upon the presentation in unknown circumstances by the claimants to have additional rights and interests registered, then how does that affect any ongoing right to negotiate process? This is about which rights and interests can be dealt with in the right to negotiate process. What if you are halfway through a right to negotiate process and another set of rights and interests is added to the register? We think it is impractical. We think the test as proposed is the only way in which the registrar can sensibly deal with this in which parties to a right to negotiate can sensibly negotiate without this sort of open door to further rights and interests being claimed and possibly entered on the register.18:29:002102Harradine, Sen BrianSenator HARRADINE6H4TASIND00—Minister, the provisions in the legislation have certain time limits. You want certainty, and you want to try to have these claims in and have them within those fairly tight parameters: what if additional information arises later, and they come to light after the three months have expired, for example? What then? Are you saying that that is the finish—complete, no more? There might be very strong evidence which would have convinced the registrar to have the claimant group registered.18:30:002102Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—The time limits are known to us. You get three months now, I think it is, to lodge a claim, and another month for it to be considered. That is in response to a section 29 notice. Anyone can lodge a claim at any time. If we are not talking about the pressure of a section 29 notice, they have as much time as they like to make out their claim and to seek to have it registered.Sitting suspended from 6.30 p.m. to 7.30 p.m.19:30:002102Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I wish to raise one matter that carries over from the previous consideration. Does Senator Harradine want each of the amendments to be treated separately?6H4HARRADINESenator Harradine—I am voting in favour.XE4Bolkus, Sen NickSenator BOLKUS—Thank you, Senator. I did say that there was a need to move N34 in amended form to replace the word `can' with the word `could', and that also needs to happen with N35. At the end of the first line where it makes it clear that the registrar `can' that should read `could'. I seek leave to move to make those changes. Basically it is the same language as the government's in terms of whether it should be `can' or `could', but the principle is a little different.Leave granted.2102Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I move:(N34) At the end of paragraph 186(1)(g), add "or thereafter considers, prima facie, could be established".(N35) After paragraph 186(1)(g), insert: Note: The Registrar may wish to enter some rights or interests immediately and continue to consider others. Rights may be entered when the Registrar forms the appropriate view.19:31:002102Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I was half-way through a response to a question by Senator Harradine when we were interrupted by a dinner break I did not have. I had given a partial answer to the issue of being able to add rights and interests to a registered claim. What we are saying is that in relation to the particular right to negotiate process which would be in question it would only be those rights and interests which had passed this test at that time, and by the deadline, which would be able to be the subject of negotiation, or relevant, for that particular right to negotiate process. Once the claim was registered, in respect of any future section 29 notices or right to negotiate processes over future pro posed leases, the claim could be amended, based on application to the registrar to seek to have additional rights and interests satisfy the test.So it is not a complete bar for all time. The proposition that a right to negotiate process that was about to commence or had commenced—based on those rights and interests which passed this test—with the prospect that they could be added to at any time and with an invitation to claimants to seek to have them added to so they could become part of that right to negotiate process strikes us as unworkable. However, it does not foreclose on the opportunity to add those rights and interests to future right to negotiate processes in respect of that particular registered claim.19:33:002103Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—Is it possible for the government to indicate how it will be voting on the Harradine amendment?JX4MINCHINSenator Minchin—We will come to that.XE4BOLKUSSenator Bolkus—That is further down the track.JX4MINCHINSenator Minchin—Can we deal with the amendments seriatim?19:34:002103Harradine, Sen BrianSenator HARRADINE6H4TASIND00—We are looking at the registration of claims and interests. With the registration test likely to be substantially higher than it is now, we are looking principally at the genuine potential native title holders. Under those circumstances, bearing in mind that where the registrar fails to register particular interests, registers some but not others, or another—say nine interests have been registered and one has not been registered because the material has not yet come to light—the question of whether that interest is a valid one goes to arbitration. What I think Senator Bolkus is pointing out with his N amendment is that, rather than it going to arbitration, once the information comes to light why can't the registrar simply register that particular interest?19:35:002103Bolkus, Sen NickSenator BOLKUSXE4SAALP00—That is exactly the point that we are pursuing. We are talking about this in the context of a new framework of evidentiary requirements, documentation and so on. In a sense, what we are trying to achieve is some flexibility for the registrar, who could be in a position to proceed with some claims but may, for instance, have called for more information and may want more information in respect of some others. By being able to proceed with some and allow further consideration of the others it provides flexibility, recognising, as Senator Harradine rightly says, that we are talking of a much higher threshold in terms of the evidentiary test and the sort of information that is required.19:36:002103Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—The government is not able to accept the amendment, as I have stated. The current processes impose some discipline on claimants to identify those native title rights and interests which they believe will satisfy the prime facie test to make their claim, to allow the registrar a month to determine whether or not he or she is satisfied that there is a prime facie case in respect of those native title rights and interests.If we leave the process open there is very little discipline at all. It is for grantee parties, those seeking leases, licences, et cetera, that are subject to this process—and, remember, we are talking about thousands—to be exposed to the potential for the ball game changing in mid-course—that is, to have additional rights and interests in the middle of a right to negotiate process in this way. Subject to that sort of uncertainty, we do not think it is reasonable.Claimants should identify those native title rights and interests which they claim and give the registrar the opportunity and the information required for him or her to satisfy themselves that it is a prima facie case. So far as that right to negotiate process is concerned, those are the rights and interests which will be able to be subject to negotiation as to the impact on them of the proposed lease or licence. Once the claim is registered, with respect to any future section 29 notices claims can be amended if additional evidence is brought that persuades the registrar that additional rights and interests should be registered. But I think you must take account of the other parties to a right to negotiate process and the certainty which they have every reason and right to seek as well.19:38:002104Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Senator Harradine mentioned that this registration test is substantially higher than what was there previously. He said that this will mean that we will have only genuine native title claimants registering—6H4HARRADINESenator Harradine—I think I said `by and large'.DX5Margetts, Sen DeeSenator MARGETTS—Or by and large genuine native title claimants, as opposed to by and large non-genuine native title claimants, who may miss out as a result of this. Considering that the actual number of people who may miss out is unknown—who have a connection but miss out on the physical connection—and if the number of people lodging native title claims is slightly less but similar to what they are now, will we be back here in the Senate ratcheting the test up higher than it is now?19:39:002104Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—The parliament is now considering the benefit of having had four years experience of the current Native Title Act and with experience having found it inadequate, we earnestly hope and believe, and come to the parliament believing, that this test will be adequate. If the legislation is passed in the manner proposed by the government there will be no need to amend it.I would think that you would accept that all legislation of this kind must be subject to the test of practicality and workability. It is open to a future government, Labor or Liberal, to come back to the parliament at some point in time and seek to have any of these points changed in any way that it sees fit. It is for the parliament to make a decision. We believe that we have struck upon a test which is at a level at which it will work effectively and it should not be in need of amendment in the future.19:40:002104Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Considering the statements that have been made by the government about the need to remove multiple claims, has the government made any estimate of how many people will be excluded or who will drop off the current claims as a result of these processes? I guess that is what you have promised your constituency—that they will see fewer people able to go through this process. What is your estimate of how many people will be knocked off the process as a result of the higher threshold test?19:41:002104Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—Of course the government has not. We are setting the standard and it will be for the registrar to apply it. We ourselves are not seeking to apply this test to all the claims in the system. I remind you that the test will apply only to claims registered since the government's registration test was first introduced into the parliament. That is now some time ago. I think it was the end of June 1996 when we first introduced legislation regarding this test and we indicated then that the test would apply to all claims registered after that date. I think there were several hundred claims registered to that point which are not affected by this test per se, unless there is a section 29 notice issued in respect of them, so it will have a differential impact in terms of when the claim was registered, what it covers, et cetera. But, no, we believe that this test will do what many Aboriginal groups have sought—that is, to impose more discipline in the registration process to ensure that only those with bona fide genuine claims and claim groups will have access to the right to negotiate.I remember sitting down with the Waanyi representatives complaining about the problems in relation to the Century process. They said to us, `There are claimants involved in this right to negotiate process who should not be here. There should be a better test to ensure that they are not part of this registration process.' It was even said to us then that we ought to have a majority test in relation to the right to negotiate: that if a majority of registered claimants can reach agreement then the agreement should be signed. We are not doing that; we are not putting in a proposal of that kind. The right to negotiate still involves the necessity to get the agreement of all the claimants if you want to avoid going to arbitration.But the test will minimise the extent to which there are several claims coming from within the one claim group. This is something sought by Aboriginal people to ensure that one claimant group makes one claim, and you do not have several claims being made by people who are all related and within the one claim group. We are confident that, as it is implemented and as claims are made, it will reduce the extent of the real problem within Aboriginal communities of multiple competing and overlapping claims often generated from within the one group and that the right to negotiate process, which we acknowledge is a very important process for Aboriginal people, will involve genuine claimants sitting down, discussing and seeking agreement with the proposers of the particular mining development.19:43:002105Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—The minister must have promised something to the bush in relation to this particular threshold measure. What have you actually said will be achieved numerically? Have you actually been advising mining interests and so on to get ready with their section 29 notices to re-establish the requirement to establish the right to negotiate?19:44:002105Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—We have not promised or proposed anything in relation to numbers. That will be a matter for the registrar to determine in relation to the claims made. I cannot forecast or would ever endeavour to suggest whether any existing claims would be subject to this test or the extent to which they would pass or fail this particular registration test, remembering that their applications for determination for native title of course can proceed and are not affected by this test at all. This only relates to the right to negotiate and the government has not indicated to anyone, privately or publicly, how many of the claimants who are in the current system might or might not fail this test.19:45:002105Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I am just wondering, though, whether you have advised industry sectors to get ready with their section 29 notices.19:45:002105Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I am not giving any advice to anybody. We are putting forward our legislation. We hope it will be passed. If and when it is passed, it is a matter for all those affected by it to act in accordance with it.Amendments (Senator Bolkus's) agreed to.Amendment (Senator Minchin's), as amended, agreed to.19:46:002105Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—As I indicated earlier, in order to expedite the debate, the next amendments the Greens and Democrats will be moving will be the group 235 to 237. That means I will not be moving 224, 225 or 227. I ask that we could move those after the Senate has dealt with government amendment 73 and Senator Harradine's amendment N4.Amendments (by Senator Minchin) proposed:(72) Schedule 2, item 63, page 203 (line 8), omit "accompanying documents", substitute "other documents provided by the applicant".(73) Schedule 2, item 63, page 205 (line 22) to page 206 (line 28), omit subsections (5) to (10), substitute:Factual basis for claimed native title(5) The Registrar must be satisfied that the factual basis on which it is asserted that the native title rights and interests claimed exist is sufficient to support the assertion. In particular, the factual basis must support the following assertions: (a) that the native title claim group have, and the predecessors of those persons had, an association with the area; and (b) that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests; and (c) that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs. Prima facie case(6) The Registrar must consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established. Note: If the claim is accepted for registration, the Registrar must, under paragraph 186(1)(g), enter on the Register of Native Title Claims details of only those claimed native title rights and interests that can, prima facie, be established. Only those rights and interests are taken into account for the purposes of subsection 31(2) (which deals with negotiation in good faith in a "right to negotiate" process) and subsection 39(1) (which deals with criteria for making arbitral body determinations in a "right to negotiate" process).Physical connection(7) The Registrar must be satisfied that at least one member of the native title claim group: (a) currently has or previously had a traditional physical connection with any part of the land or waters covered by the application; or (b) previously had and would reasonably have been expected currently to have a traditional physical connection with any part of the land or waters but for things done (other than the creation of an interest in relation to land or waters) by: (i) the Crown in any capacity; or (ii) a statutory authority of the Crown in any capacity; or (iii) any other person.No failure to comply with section 61A(8) The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that, because of section 61A (which forbids the making of applications where there have been previous native title determinations or exclusive or non-exclusive possession acts), the application should not have been made.No extinguishment etc. of claimed native title(9) The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that: (a) to the extent that the native title rights and interests claimed consist of or include ownership of minerals, petroleum or gas—the Crown in right of the Commonwealth, a State or a Territory wholly owns the minerals, petroleum or gas; or (b) to the extent that the native title rights and interests claimed relate to waters in an offshore place—those rights and interests purport to exclude all other rights and interests in relation to the whole or part of the offshore place; or (c) in any case—the native title rights and interests claimed have otherwise been extinguished (except to the extent that the extinguishment is required to be disregarded under subsection 47(2), 47A(2) or 47B(2)).10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Reynolds)—The question is that government amendment 72 be agreed to.Question resolved in the affirmative.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—The question now is that government 73 be agreed to.19:47:002106Bolkus, Sen NickSenator BOLKUSXE4SAALP00—Government amendment 73 is the kernel of this debate and, as we said earlier, the opposition does not support this amendment. This is the one that goes to the heart of the threshold test. I would like to suggest to the committee that it might be appropriate to put opposition amendment N36 before Senator Harradine's N4. I think the Democrats and Greens (WA) amendments 235 to 237 could, in essence, go first, but Senator Harradine's amendment and the opposition amendment are the ones that basically stand head to head against each other. From our position, it would obviously be much preferred if the opposition amendment were debated first. That is very much our first option, though the government position is one that we really could not accept.19:48:002106Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—On several occasions, I have made the suggestion that we deal with what has been the debating point throughout this last hour or so—that is, we look at what the real choices are and, quite frankly, the numbers in the Senate are indicating what the real choices are. The Greens and the Democrats are indicating that there are not the numbers in the Senate to support N4, so I believe it would make sense for us to deal with government amendment 73, then deal with N4 and then deal with the other amendments, which in fact may be an improvement on those positions.19:49:002107Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—Just briefly in support of what Senator Margetts has said, I think we always should move from the least desirable. In this case, we should consider the government's amendment, then the amendment which is nearest to the government's amendment—which is the Harradine amendment N4—and then proceed through. It seems logical to me to do that. I would just repeat my question to the minister, who indicated he would answer it at this point—that is, is he going to support Senator Harradine's amendment?19:50:002107Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I think I had at least given a very strong hint, if not said so explicitly, that the government was not in a position to accept Senator Harradine's amendment. I did explain that we believe the physical connection test as proposed and as amended by us—so we are putting in an amended physical connection test—is appropriate and fair, and we think it is unworkable to allow it to go back and affect one generation. It would be impossible for the registrar practically to apply such a test. So, for your information, we will be opposing Senator Harradine's amendment.19:51:002107Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Senator Minchin, I am assuming there have been some discussions with Senator Harradine. Was Senator Harradine given to understand that, if this amendment passed through the Senate, it would be rejected in the House of Representatives?19:51:002107Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—All I can say is that we have indicated to Senator Harradine that the government cannot accept that amendment. There is no more that can be said: the government is unable to accept Senator Harradine's amendment, full stop.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Reynolds)—Senator Bolkus, do you wish to move opposition amendments N36 and N37, which actually amend government amendment 73?19:51:002107Bolkus, Sen NickSenator BOLKUSXE4SAALP00—My amendments read as follows:(N36) Schedule 2, item 63, page 205 (line 22) to page 206 (line 28), omit subsections (5) to (10), substitute:Registrar's satisfaction about the basis of the Application (5) The Registrar must be satisfied that: (a) the factual basis on which it is asserted that the native title rights and interests claimed exist is sufficient to support the assertion and that it supports the following assertions: (i) that the native title claim group have, and the predecessors of those persons had, an association with the area; (ii) that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests; (iii) that the native title claim group has continued to hold the native title in accordance with those traditional law and customs; or (b) at least one member of the native title claim group: (i) currently has or previously had a traditional physical connection with any part of the land or waters covered by the application; or (ii) would reasonably have been expected currently to have a traditional physical connection with any part of the land or waters but for things done (other than the creation of an interest in relation to land or waters) by the Crown in any capacity, a statutory authority of the Crown in any capacity or any other person.Prima facie case (6) The Registrar must consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established. Note: If the claim is accepted for registration, the Registrar must, under paragraph 186(1)(g), enter on the Register of Native Title Claims details of only those claimed native title rights and interests that can, prima facie, be established. Only those rights and interests are taken into account for the purposes of subsection 31(2) (which deals with negotiation in good faith in a "right to negotiate" process) and subjection 39(1) (which deals with criteria for making arbitral body determinations in a "right to negotiate" process).No failure to comply with section 61A (7) The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that, because of section 61A (which forbids the making of applications where there have been previous native title determinations or exclusive or non-exclusive possession acts) the application should not have been made. (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.No extinguishment of native title to minerals etc. (9) The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that to the extent that the native title rights and interests claimed consist of or include ownership of minerals, petroleum or gas—the Crown in right of the Commonwealth, a State or a Territory wholly owns the minerals, petroleum or gas.(N37) Government amendment (73), subsection 190B(6), omit "some", substitute "one".As I said earlier, these are the amendments that incorporate in the legislation the Brennan Mabo test.19:52:002108Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—If one of these is an amendment to a government amendment which we have not yet discussed or voted on, perhaps it is a procedural problem. You cannot amend something that has not actually been agreed to by the Senate. Either we deal with government amendment No. 73 now or we deal with N36 and then come back to it.19:53:002108Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—We are talking about 37, not 36, are we not?10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Reynolds)—We were talking about both, but we are now talking about N36.DX5Margetts, Sen DeeSenator MARGETTS—This seems to be an attempt by some people to try to weasel out of potential public commitments that have been made by parties in the public arena. I would be unkind enough to suggest that the Leader of the Opposition, Mr Beazley, in front of Australia, in front of the elders, signed up to the six steps to coexistence, and that included No. 3—respecting indigenous cultural and spiritual attachment to traditional lands. I signed up to that as well, and so did the Democrats. The Democrats and the Greens are respecting that. I am just wondering if what we are doing here is trying to organise the pattern so that that promise is broken by the ALP.19:54:002108Bolkus, Sen NickSenator BOLKUSXE4SAALP00—Once again, the flak seems to be coming from this side of the parliament, and unjustifiably so.JX4MINCHINSenator Minchin—Oh, I don't know.XE4Bolkus, Sen NickSenator BOLKUS—Yes, you have your own interests here. I could argue with Senator Margetts at length, but the reality of the situation is that we are continuing with the amendment that we moved last time. It is an amendment which we hope will get support in the Senate, and it is the amendment that maintains the traditional attachment test, the Mabo test, the Brennan test in Mabo. That is the one I want to vote on first.Blind Freddy understands that, if the numbers are not here for this one, the Senate has to make an assessment as to what the second best preference is, if it is concerned about protecting Aboriginal interests. If, to some, that second best preference is the government's position as opposed to Senator Harradine's, let them be judged on that. But we have been busting our guts to try to get the amendment that was passed last time up through the Senate this time, and that has been very much one of the major purposes of this debate, not just in here but in discussions over the recent four, five or six weeks at all different levels. The commitment is there. The commitment stays there. But, in all your purity, if you want to vote Aboriginal interests down, Aboriginal rights down, Senator Brown, go ahead and do so.As I mentioned earlier, there are some real hard cases out in the community, people who will move to different areas who will not qualify to pursue claims under Senator Minchin's test, who will qualify under ours and who will also qualify under Senator Harradine's. If you want to deprive them of rights at the end of the day, and if the numbers are not there for the opposition amendment, it will be on your heads, not the opposition's. No matter how much blustering bombast that you throw at me, no matter how much rhetoric you indulge in for the next hour or so to try to argue that it is the Labor Party who is selling out, let me tell you that you are the one walking with your eyes open over the side of a cliff.19:56:002109Brown, Sen BobSenator BROWNQD4TASAG00—That does tempt me to my feet. I am not going to enter into any argument with Senator Bolkus. I have heard the heavyweight arguments coming from the ALP before. We have seen them try to browbeat us into agreeing to log forests. We have even seen them try to browbeat us into such ventures as the uranium mines, dams and so on.That is not what is germane here. Germane here is proper order. On the non-government benches, there has been a move to bring in a new amendment—that is, Senator Harradine's amendment—as against those we dealt with in December. The right and proper thing is to test that amendment before we go back to the position we had in December. We have made it quite clear that we will not be supporting that Harradine amendment. It does not make any difference which order it goes in, and let me make it quite clear why that is the case.I am not going to be dictated to in selling out Aboriginal interests further by Senator Harradine or anyone else. The Labor Party can do that if they want to, there has to be a line drawn somewhere. If it is `brinkpersonship' that Senator Bolkus is engaged in here, it is not working. The proper order that Senator Margetts has put forward in dealing with these amendments should be the way we go. It does not matter. It is not going to change the voting outcome, and so be it.Let me just reiterate that we have an alternative coming from Senator Harradine which is not just marginally different; it is vastly different, and it cuts out people who could make a claim. We can challenge each other all night as to which of the 800 potential claims come within or without the ambit of Senator Harradine's or Senator Bolkus's positions. The fact is that people will be cut out, and that is why all of us—Senator Harradine, the Democrats, the Greens and the Labor Party—should be sticking with where we were last December and ensuring that those people who have a spiritual claim, an attachment to the land, which comes through their grandparents, their uncles or aunts, are not cut out by the Harradine slippery slide away from that position towards the government, as is inherent in his amendment.It does not matter what order they come in. Senator Margetts has put forward the sensible way of doing it. But, if the Labor Party wants to side with Senator Harradine against the government, and people on this side are in that or against anybody, so be it. We will not argue about the procedure. We will argue about the substance of what is happening. There has to come a point where you say, `Enough is enough.' There has to come that line. All of us had a position in December on this issue which we said was the bottom line then, including Senator Harradine. Senator Harradine has drifted away from his bottom line. As far as I am concerned, he can drift on his own because there are people out there in the bush who lose out if we drift with him.I will be saying a bit more later when it comes to the upgrade provisions and the right to negotiate over the upgrade of lands. I will not canvass that here because that is going to be a test in itself. So much has been sold out already, though. Of course the argument always comes up, `Oh, well, drift a little further.' Not on this one. We stated our position in December, Labor did, the Democrats did and Senator Harradine did. But Senator Harradine has now decided to renege, to give away more against the wishes and interests of the indigenous people. Be that on his head. The Labor Party can decide what it wants to do in its own good time.20:00:002110Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I just want to remind the Senate that nobody has answered the question about how you deal with the difficulty of defining `parent' in Aboriginal culture, given the variety of Aboriginal culture; nobody has answered the question of how you deal with stolen generation adopted children; and nobody has answered how those cultural complexities will be dealt with in any way, shape or form by Senator Harradine's amendments. In effect, we have the Labor Party voting for a physical connection test. That is the bottom line of it.20:01:002110Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I think it is important that the Democrats put on the record where we stand in all of this. There is no doubt that the Labor Party's amendment is preferable to any of the others which have been proposed, at least in terms of the government and the Harradine amendments, and that would be about as far as the Democrats were prepared to go.The principle that we keep enunciating is that the registration test should include a physical or a spiritual or a cultural connection. We cannot see that Senator Harradine's and the government's position are very different. Certainly, in theory, Senator Harradine's amendment seems to be an improvement on the government's position, but we do not see that it is sufficiently an improvement to really attract us. Let me just say why that is so.The problem with both the government and Senator Harradine's amendment is that the onus of proof is very much on people who are the victims of dispossession—in one sense not only of dispossession but also of attempted genocide. It seems to me that justice cannot be delivered when what most of these people have experienced has been without their knowledge and without their consent. I pointed out before that in Queensland particularly there has been a practice of destroying documents which could in fact establish some of the connections that either the government or Senator Harradine are talking about, but because of the loss of that documentation it is very doubtful. I have not heard Senator Harradine give me a guarantee that it could obtain. It is very doubtful that we could proceed down the road of the government or Senator Harradine's amendment and arrive at any justice for the people we are talking about.We have information that suggests that people who have been dispossessed, or in fact stolen, in terms of the stolen children, may still have a cultural place held for them within the system of native title holding; not in any white law system, but certainly in terms of how Aboriginal people view it. That certainly is true of the Maroochy Barambah case that I detailed before dinner. Are we going to deny those people their connection? I believe that we cannot take that risk. Why should they have to have the onus of proof to prove their position over and against what was an immoral and an illegal action by governments and other people?Just one more example, and I will close with this, is that in Victoria, from 1886 onwards, so-called half-castes were no longer permitted to live on mission stations. Yet they were set firmly within their own native title country. In a sense, it is a policy based on eugenics, I understand, Senator Brown, and we cannot place our trust in that kind of policy. So that is the position that we are left in and that is why we would prefer to deal with Senator Harradine's amendment first. But we are aware of how the numbers go in this place.NaN:00:002110Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I would like to put it on record, though, and seek leave to deal with Senator Harradine's amendment N4 first.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Reynolds)—Senator Harradine, would you be willing to move the amendment if leave was granted?20:05:002110Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I suggest, Madam, that we proceed according to standing orders.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—That means we have to set aside the government amendment, Minister, and we must deal first with opposition amendment N36, if that is the wish of the committee.20:06:002111Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Madam Temporary Chair, I do not think we are in any way or form breaching standing orders; we are just asking. I still have not had an answer about whether leave can be granted for us to consider Senator Harradine's amendment first. Nobody has actually denied leave, and I guess that will happen, but I just wanted to ask that question.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—We cannot deny leave unless Senator Harradine is prepared to move that way, Senator Margetts.20:06:002111Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Madam Temporary Chair, on various occasions during debates—I am happy to be re-directed—I have asked for a different order. I understand that it will not work if the person is not prepared to move the amendment, but I have sought leave to work in a certain order and the leave has been given before the motion has been moved. But I am not sure whether I can only do that if it is my amendment. I have done it in the past in respect of somebody else's amendment—asked that they move their amendment first. It has not necessarily been that they had to move their amendment first, because it seems to be an almost impossible thing to do.20:07:002111Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I thought we had all agreed that we would move Labor amendment N36 and see where we stand after that.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Thank you, Minister. I think our problem, Senator Margetts, is that we have to postpone government amendment No. 73. You are still concerned that you have not had an answer, but I am advised that that question is dependent on whether or not Senator Harradine wishes to move his amendment first, and then leave may or may not be granted.20:08:002111Harradine, Sen BrianSenator HARRADINE6H4TASIND00—Might I just say that I am happy to move my amendment at the appropriate time, which is not now. I will be particularly happy to move it in a manner and at a time which will give the Greens an opportunity of voting for it.20:08:002111Brown, Sen BobSenator BROWNQD4TASAG00—It is becoming not of great importance, because Senator Harradine's motion is going to be lost. The government, the Democrats and the Greens have indicated that they do not support it. It is gone. The real test here is whether the Greens or opposition amendments which we stuck with and which Senator Harradine stuck with in December get the vote. That, of course, is going to depend on Senator Harradine.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—I really need someone to postpone government amendment No. 73 for the time being.20:09:002111Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I would agree that we should move N36 and suggest that we then come back to government amendment No. 73.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Senator Bolkus, could you now move your first amendment, N36.Amendment (by Senator Bolkus) proposed:(N36) Schedule 2, item 63, page 205 (line 22) to page 206 (line 28), omit subsections (5) to (10), substitute:Registrar's satisfaction about the basis of the Application (5) The Registrar must be satisfied that: (a) the factual basis on which it is asserted that the native title rights and interests claimed exist is sufficient to support the assertion and that it supports the following assertions: (i) that the native title claim group have, and the predecessors of those persons had, an association with the area; (ii) that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests; (iii) that the native title claim group has continued to hold the native title in accordance with those traditional law and customs; or (b) at least one member of the native title claim group: (i) currently has or previously had a traditional physical connection with any part of the land or waters covered by the application; or (ii) would reasonably have been expected currently to have a traditional physical connection with any part of the land or waters but for things done (other than the creation of an interest in relation to land or waters) by the Crown in any capacity, a statutory authority of the Crown in any capacity or any other person.Prima facie case (6) The Registrar must consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established. Note: If the claim is accepted for registration, the Registrar must, under paragraph 186(1)(g), enter on the Register of Native Title Claims details of only those claimed native title rights and interests that can, prima facie, be established. Only those rights and interests are taken into account for the purposes of subsection 31(2) (which deals with negotiation in good faith in a "right to negotiate" process) and subjection 39(1) (which deals with criteria for making arbitral body determinations in a "right to negotiate" process).No failure to comply with section 61A (7) The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that, because of section 61A (which forbids the making of applications where there have been previous native title determinations or exclusive or non-exclusive possession acts) the application should not have been made. (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.No extinguishment of native title to minerals etc. (9) The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that to the extent that the native title rights and interests claimed consist of or include ownership of minerals, petroleum or gas—the Crown in right of the Commonwealth, a State or a Territory wholly owns the minerals, petroleum or gas. Question put.20:14:00The committee divided. (The Chairman—Senator S. M. West)32Allison, L. Bartlett, A. J. J.Bishop, M. Bolkus, N.Bourne, V. Brown, B.Campbell, G. Carr, K.Collins, J. M. A. Conroy, S.Crowley, R. A. Denman, K. J. *Evans, C. V. Faulkner, J. P.Forshaw, M. G. Hogg, J.Lees, M. H. Lundy, K.Mackay, S. Margetts, D.McKiernan, J. P. Murphy, S. M.Murray, A. Neal, B. J.O'Brien, K. W. K. Quirke, J. A.Ray, R. F. Reynolds, M.Sherry, N. Stott Despoja, N.West, S. M. Woodley, J.34Abetz, E. Alston, R. K. R.Boswell, R. L. D. Brownhill, D. G. C.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. Payne, M. A.Synon, K. M. Tambling, G. E. J.Tierney, J. Troeth, J.Vanstone, A. E. Watson, J. O. W.Cook, P. F. S. Reid, M. E.Cooney, B. Knowles, S. C.Gibbs, B. McGauran, J. J. J.Schacht, C. C. Hill, R. M.* 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.20:18:002113Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I seek leave to defer the Democrat-Greens (WA) amendments until after we have dealt with Senator Harradine's amendment.10000CHAIRMANThe CHAIRMAN—You do not need leave because it has not been moved.20:19:002113Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—Madam Chair, I understood it was agreed that we would now move to government amendment No. 73 before moving to Senator Harradine's amendment N4. I understood that was the procedure that we all agreed on. Government amendment No. 73 reads:(73) Schedule 2, item 63, page 205 (line 22) to page 206 (line 28), omit subsections (5) to (10), substitute:Factual basis for claimed native title(5) The Registrar must be satisfied that the factual basis on which it is asserted that the native title rights and interests claimed exist is sufficient to support the assertion. In particular, the factual basis must support the following assertions: (a) that the native title claim group have, and the predecessors of those persons had, an association with the area; and (b) that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests; and (c) that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs.Prima facie case(6) The Registrar must consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established. Note: If the claim is accepted for registration, the Registrar must, under paragraph 186(1)(g), enter on the Register of Native Title Claims details of only those claimed native title rights and interests that can, prima facie, be established. Only those rights and interests are taken into account for the purposes of subsection 31(2) (which deals with negotiation in good faith in a "right to negotiate" process) and subsection 39(1) (which deals with criteria for making arbitral body determinations in a "right to negotiate" process).Physical connection(7) The Registrar must be satisfied that at least one member of the native title claim group: (a) currently has or previously had a traditional physical connection with any part of the land or waters covered by the application; or (b) previously had and would reasonably have been expected currently to have a traditional physical connection with any part of the land or waters but for things done (other than the creation of an interest in relation to land or waters) by: (i) the Crown in any capacity; or (ii) a statutory authority of the Crown in any capacity; or (iii) any other person.No failure to comply with section 61A(8) The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that, because of section 61A (which forbids the making of applications where there have been previous native title determinations or exclusive or non-exclusive possession acts), the application should not have been made.No extinguishment etc. of claimed native title(9) The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that: (a) to the extent that the native title rights and interests claimed consist of or include ownership of minerals, petroleum or gas—the Crown in right of the Commonwealth, a State or a Territory wholly owns the minerals, petroleum or gas; or (b) to the extent that the native title rights and interests claimed relate to waters in an offshore place—those rights and interests purport to exclude all other rights and interests in relation to the whole or part of the offshore place; or (c) in any case—the native title rights and interests claimed have otherwise been extinguished (except to the extent that the extinguishment is required to be disregarded under subsection 47(2), 47A(2) or 47B(2)). 10000CHAIRMANThe CHAIRMAN—Senator Bolkus, you have an amendment to government amendment No. 73—N37.20:20:002114Bolkus, Sen NickSenator BOLKUSXE4SAALP00—Indeed, I do, but I would have thought it more appropriate for Senator Harradine's amendment to go first here. I move:(N37) Section 190B(6), omit "some", substitute "one".Our amendment to government amendment No. 73 amends subsection 190B(6) such that native title claimants must only establish prima facie one rather than some of the native title rights. Given the fact that claimants who had established only one right or interest to access the right to negotiate under the current act, the government's requirement for some rights to be established is unreasonable, not in line with other parts of the act and artificial as a consequence.If we are going to be faced with the government's test here, then at least we should consider amending it to ensure it is in line with other aspects of the act. So trying to achieve that result, we wish to amend it to ensure that the claimants must establish prima facie grounds for only one rather than some of the native title rights. I think the government could accept that.20:20:002114Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I indicate that we are not able to accept opposition amendment N37. We think it is unnecessary. The amendment proposed by the government takes away the notion that each and every right claimed has to be proved for the claim to be registered or prima facie established. We have changed the wording to acknowledge that we are not expecting that registration would not be successful if just one of a number of rights claimed is not able to be proved. We are not prepared to modify it any further.20:21:002114Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I am indicating that the Greens (WA) will be supporting opposition amendment N37.20:21:002114Harradine, Sen BrianSenator HARRADINE6H4TASIND00—As the minister said, this government amendment has taken into account the principal issues that were of concern and it certainly turns around what was previously in the government legislation. So I think, to a certain extent at least, that has been taken care of.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—The question is that opposition amendment N37 be agreed to.Question resolved in the negative.10000CHAIRMANThe CHAIRMAN—The question is that government amendment 73 be agreed to.20:22:002114Harradine, Sen BrianSenator HARRADINE6H4TASIND00—Madam Chair, I would like to move N4, which is on page 3 of the amendments.10000CHAIRMANThe CHAIRMAN—Senator Harradine, my understanding is that your N4 does not amend government amendment 73. It is separate to it.20:23:002114Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Madam Chair, Senator Harradine has indicated he is willing to move N4 now, and I am very happy to allow him to do it.10000CHAIRMANThe CHAIRMAN—It is not possible because it is not an amendment to government amendment 73. It is additional to government amendment 73. It adds to it; it does not alter it. The question is that government amendment 73 be agreed Question put: That the amendment (Senator Minchin's ) be agreed to.20:27:00The committee divided. (The Chairman—Senator S. M. West)57Abetz, E. Alston, R. K. R.Bishop, M. Bolkus, N.Boswell, R. L. D. Brownhill, D. G. C.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. Crane, W.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. Macdonald, S.MacGibbon, D. J. Mackay, S.McKiernan, J. P. Minchin, N. H.Murphy, S. M. Neal, B. J.Newman, J. M. O'Brien, K. W. K.O'Chee, W. G. *Parer, W. R.Patterson, K. C. L. Payne, M. A.Quirke, J. A. Ray, R. F.Reynolds, M. Sherry, N.Synon, K. M. Tambling, G. E. J.Tierney, J. Troeth, J.Vanstone, A. E. Watson, J. O. W.West, S. M.9Allison, L. Bartlett, A. J. J.Bourne, V. *Brown, B.Lees, M. H. Margetts, D.Murray, A. Stott Despoja, N.Woodley, J.Question so resolved in the affirmative.20:31:002115Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I would like to make a couple of comments at this stage in respect of that vote and the next vote. All the way through this debate, the opposition has said that its preferred option is the one with three avenues of claim. That, of course, was defeated a few moments ago. I also said that our second preferred option was the Harradine proposal, which accommodates an extra generation of people. To get to the Senator Harradine proposal one had to ensure that there was something there to amend. Our support for the previous motion before the chamber lays the groundwork for us to pick up the Harradine amendment.The role of the amendments has meant that at some stage difficult decisions have to be made by us all. People made a difficult decision in respect of the opposition amendment. People had to make a difficult decision as to the government amendment to ensure that there was a platform to pursue the Harradine amendment as a second option. People now have to make a difficult assess ment as to whether to accept the Harradine amendment to the government proposal or to allow the government proposal to go through unamended.It is very important that the Harradine amendment—which, as I said earlier, is a major improvement on the government's proposal and is a second best to our amendment in our eyes—now be carried by the Senate. Without going through the previous debate, I re-emphasise the point that a lot of people will be enfranchised by the Harradine amendment who would be disenfranchised if that amendment were not carried by the Senate. I hope that the numbers are there for it to be carried.QD4BROWNSenator Brown—On a point of order: I draw your attention, Madam Chair, to the procedure whereby an amendment was made to the legislation and now we are being asked to deal with an amendment to that amendment.10000CHAIRMANThe CHAIRMAN—It is not an amendment to the amendment. Senator Bolkus was not correct. Senator Harradine's amendment is an addition.QD4BROWNSenator Brown—Thank you, Madam Chair, for your considerate response to my easygoing question! I just point out that you will have to resolve that with Senator Bolkus who just said that it is an amendment to the amendment.10000CHAIRMANThe CHAIRMAN—I think Senator Bolkus has just taken the point that I have made.DX5MARGETTSSenator Margetts—My office has been looking through this, and Senator Harradine could not have made that amendment until that amendment was passed. In fact, Senator Harradine's amendment is an amendment to the amendment we have just passed.10000CHAIRMANThe CHAIRMAN—It is an addition to it; it is not altering the substance. I have been given advice that that is the case, and that is my understanding. I am calling Senator Harradine. Do you wish to disagree, Senator Margetts?DX5MARGETTSSenator Margetts—I just suggest that when we have amendments which are in addition, we generally call them amendments.10000CHAIRMANThe CHAIRMAN—But they are additional; they are not altering the substance of the amendment that the government was moving.20:35:002116Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I move:(N4) Schedule 2, item 3, page 206, line 28, at the end of section 190B, add: (11) For the purposes of the operation of paragraph (7)(b), the reference to a member of the native title claim group will be taken to include a reference to the parent of a member of the native title claim group.This amendment is an addition to the amendment to the Native Title Amendment Bill which has just been carried by the committee. I will not take long because we canvassed the matter in the amendment earlier today. I hope the government and the committee as a whole looks favourably on this particular measure. The government is insistent upon its test, but this ameliorates it so as to ensure that indigenous people who have been victims of the stolen generation and locked gates problems are not prevented from having their claims registered when they have not given up their native title rights and interests to the land of their ancestors.After discussion, the government has gone some way—and I admit this—to providing for this situation in subsection (b) of the amendment that has just been passed by the committee. But in my view this does not go far enough, given the fact that many of the victims of those policies and incidents, due to the scandalously low life expectancy of indigenous people, are no longer alive. Hence, I am moving this additional amendment. I am doing so by adding an extra generation to the government's physical connection test. I commend the legislation to the committee and hope, notwithstanding what has been said thus far in the chamber, that honourable senators will realise that this is a very significant additional amendment to the Native Title Amendment Bill.20:38:002116Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Madam Chair, I am not entirely sure at which point an amendment becomes a bill. Perhaps I could be advised at which point, when the Senate makes amendments, they become part of the bill.10000CHAIRMANThe CHAIRMAN—When the amendment has been agreed to.DX5Margetts, Sen DeeSenator MARGETTS—Thank you. By both parties or by just the Senate?10000CHAIRMANThe CHAIRMAN—By the Senate.DX5Margetts, Sen DeeSenator MARGETTS—Thank you. The Labor Party have said that their second preferred option is Senator Harradine's amendment. They have therefore actually said that the threshold test put forward by the National Indigenous Working Group, which we consider is a considerable compromise, is not on their preference list.We will support, as we did last year, the Mabo test proposed by the ALP last year, as this is at least in accordance with common law principles. We do not agree that this common law position on determination should be applied at the registration stage, but in categorically ruling out support for any form of physical connection test we support the ALP compromise on a compromise. The ALP clearly have put their cards on the table in that, rather than supporting the threshold test which was put forward by the National Indigenous Working Group, they prefer the physical connection test.20:40:002116Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—Senator Bolkus, simply because you say that there is a massive difference between the government bill and Senator Harradine's amendment, does not make it so. I have to say that I just cannot see how you can make that claim. I really believe that Senator Harradine is not advancing us past where the government has left us, that is, with a physical connection, which will certainly rule out many people.I think that what Senator Harradine is doing is a slight improvement but that it breaks the absolute principle that we have been committed to and arguing about for so long, that is, that the connection should be physical or cultural or spiritual. Trying to convince us that somehow or other there is a vast gap between Senator Harradine's position and the government's position does not wash, I am afraid. The problem is that I do not see how including a reference to a parent of a member of the native title claim group solves the problem of stolen children. Although they may know the group from which they came, the evidence is that many of them still do not know who their actual parents are, so we still have the problem. Then, of course, it does not address the problem of wholesale removals that go back much further than one generation. I really cannot understand, Senator Bolkus, how you can say that there is a massive gap between the government's position and Senator Harradine's position. It just does not wash with me, I am afraid, even though you may say it a number of times.20:42:002117Brown, Sen BobSenator BROWNQD4TASAG00—I agree with Senator Woodley. What has happened here is, firstly, that Senator Harradine's amendment removes all avenues for a connection with the land other than a physical one being a reason for a person to move towards a claim. It adds that a claim is taken to include a reference to a parent of a member of the native title claim group.That is a slight advance on the government's position, but it leaves out uncles, aunts and grandparents—all previous generations. What we see in this amendment is what is left, but we should be looking at what has been taken out. Beyond that, it very clearly does away with the spiritual connection, the cultural connection and the traditional connection that people have with the land unless they have a physical connection argument to put forward. It is just not good enough.The dynamics of this are that, in December last year, the non-government participants in this debate agreed to have the spiritual, cultural and physical connection test available. All other components of the non-government benches except for Senator Harradine hold firm to that. That is for him to wrestle with. The Greens cannot go along with this further removal of the ability of indigenous people to make a claim that the land is theirs when it is.Senator Minchin might talk about all the processes that are in between, but that confuses the matter. Let us be straight about it. If we stop people at the outset, we stop them at the finish; if we stop them at the gate, we stop them getting anywhere. The problem here is that, as Senator Woodley has put it, Senator Harradine's amendment is very close to the government's amendment. It is certainly much closer to the government's amendment than it is to the next Greens-Democrat amendment. That will be the real test here.Senator Harradine's amendment has gone, as I said before—the numbers are not here for it. The real test will be whether the numbers are here for us to stick true with the test that we first supported in December last year.20:45:002117Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I am getting advice that there still seems to be some concern about whether Senator Harradine's amendment is in fact valid, given the way the vote went, what it added on and what it changed. Could I ask the chair to go back and look to see whether in fact Senator Harradine's amendment will work.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Chapman)—Senator Harradine's proposed amendment is valid. It is an addition of 190B(11) to the section that is already in the bill.20:46:002117Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—To clarify matters, the Senate has adopted government amendment 73 which introduces the new physical connection test in subsection (7)(b). What Senator Harradine is proposing is an amendment which would amend the bill to add to the meaning of (7)(b) which is now part of the bill. What Senator Harradine is proposing is what is in addition to that, so that for the purpose of the operation of subsection (7)(b) the reference to a member of the native title claim group would be taken to include a reference to the parent or a member of the native title claim group. So it is an interpretation of (7)(b) which the committee has just adopted.20:47:002117Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I do not want to prolong this—I suppose I am prolonging it—but I think that Senator Margetts has a point. You see, it is not just adding; it is actually changing the government's registration test. That is why the government has indicated that it will vote against it. This is the point that I think Senator Margetts is trying to push. We know how the numbers are, so I do not intend to continue this, but you can see my problem with what is being said.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Chapman)—The fact is that the committee has voted to add subclauses (5) to (10) and, once that has been achieved, it is quite within the competence of the committee to add another subclause—subclause (11). In that context, it is quite valid for the amendment to be made.20:48:002118Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I do not propose to respond to the statements that have been made. It is quite clear that Senator Brown is obdurate in his attitude to the truth in this matter.DX5MARGETTSSenator Margetts—Mr Temporary Chair, on a point of order: I would like a retraction of that.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—There is no point of order, Senator Margetts.6H4Harradine, Sen BrianSenator HARRADINE—Mr Chairman, I rarely say those sorts of things. I make that point that before dinner I tried to outline, and Senator Bolkus and Senator Minchin both tried to outline, the facts of the situation. I ask honourable senators to focus on what Senator Brown said as to this amendment. If he wants me to show him how he is absolutely wrong in just a minimal understanding of what native title is all about, I shall be able to provide him with a little paper on it tomorrow, which I shall have incorporated into Hansard .20:49:002118Brown, Sen BobSenator BROWNQD4TASAG00—It might have been my father who told me to be careful of anybody who thinks that they are the sole owners of the facts. We have a difference of opinion here.XE4BOLKUSSenator Bolkus—You should have listened to him.QD4Brown, Sen BobSenator BROWN—I did listen to him, and it is good advice. We have a difference of opinion here. Yes, I can be obdurate, I can stand strong when there is a further erosion of the rights of indigenous people involved in this pretty terrible process in here. We have not heard the last of it yet. We are going to see more of it. If `obdurate' is a word that Senator Harradine wants to levy, I will accept it. I am not in the business of simply going weak at the knees because he and I have different interpretations. I respect his ability to stand for what he thinks are the facts and I hope he will do likewise.20:51:002118Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—On another matter altogether, I realise that something very sensitive is occurring in this debate and that is that without really due recognition—we have been talking about stolen children—I am conscious of the fact that we may have in the gallery some people who come under that heading. I would like to recognise them and say that we are not just talking about theory but about the lives of people, whose lives we affect deeply. I wanted to recognise that that is so.20:52:002118Bolkus, Sen NickSenator BOLKUSXE4SAALP00—It is probably appropriate at this stage also to very briefly repeat a point I made earlier. We are talking about the difference between the Harradine amendment and the government's position. Earlier I mentioned the Wangkangurru people of the south-east corner of the Simpson Desert in western Queensland. They were removed in the 1940s. As I said earlier, they know their sites. They are a very traditional people. They have a traditional connection to their country. They are imbued with it. They associate themselves with it. I am informed that in all cases their parents have died. So, under the government test, they would not be able to pursue their claim; under the Harradine test they would. That is why I have been saying consistently that there is a big difference if you were to take it back one generation. It is the difference between two decades or maybe five, six or seven years. That in itself demonstrates, I think, the difference between the two tests. They are not the only ones. Earlier, we mentioned people from Great Keppel, and I am sure there are quite a number of similar circumstances.As I said earlier in the debate, our preferred position was the one that we moved and the one that did not get the support of this place. But in the same way that we have been trying to make incremental gains on what passed the parliament last year, trying to resist erosion of those gains or of the position that might have got through last year, in the same way that we make a commitment to ensure that the principles we pursue now we will pursue in government, I say to the committee that though this may not be the preferred option of some—obviously, our preferred option was the one we moved—I think it would be an enormous injustice to possibly a whole generation of people if we were not to pick up the amendment.Senator Woodley, I think you have picked the right point again in terms of stolen generations. In a sense they are covered by the `locked out' provisions, but people have been locked out in more than one way, they have been driven out in more than one way. If we acknowledge that, I think we really have to acknowledge the Harradine position. Though I would maintain that it does not cover all situations, it does cover a whole lot more than the government's does. That is the reason we are supporting it.Question put:That the amendment (Senator Harradine's ) be agreed to.20:59:00The committee divided. (The Chairman—Senator S. M. West)24Bishop, M. Bolkus, N.Campbell, G. Carr, K.Collins, J. M. A.Conroy, S. *Crowley, R. A. Denman, K. J.Evans, C. V. Faulkner, J. P.Forshaw, M. G. Harradine, B.Hogg, J. Lundy, K.Mackay, S. McKiernan, J. P.Murphy, S. M. Neal, B. J.O'Brien, K. W. K. Quirke, J. A.Ray, R. F. Reynolds, M.Sherry, N. West, S. M.42Abetz, E. Allison, L.Alston, R. K. R. Bartlett, A. J. J.Boswell, R. L. D. Bourne, V.Brown, B. Brownhill, D. G. C.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.Heffernan, W. Herron, J.Kemp, R. Lees, M. H.Lightfoot, P. R. Macdonald, I.Macdonald, S. MacGibbon, D. J.Margetts, D. Minchin, N. H.Murray, A. Newman, J. M.O'Chee, W. G. Parer, W. R.Patterson, K. C. L. Payne, M. A.Stott Despoja, N. Synon, K. M.Tambling, G. E. J. Tierney, J.Troeth, J. Vanstone, A. E.Watson, J. O. W. Woodley, J.Cook, P. F. S. Gibson, B. F.Cooney, B. Knowles, S. C.Gibbs, B. McGauran, J. J. J.Schacht, C. C. Reid, M. E.* denotes teller(Senator Hill did not vote, to compensate for the vacancy caused by the resignation of Senator Bob Collins.)Question so resolved in the negative.21:03:002119Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I move:(237) Schedule 2, item 63, page 205 (line 27) to page 206 (line 24), omit subsections (6), (7), (8) and (9), substitute: (6) 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. (7) 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.The government proposal does not require that evidence be filed with an application; merely that the factual basis be adequately described. The amendment deletes the new requirements which do not relate to the information required to be lodged with the application but retains the prime facie test in relation to material that must be lodged under section 190B.The physical connection test is removed under section 190B(6). If the registrar is considering relying on material adverse to the claimant, the claimant must have a chance to respond. If after that there is a factual dispute the registrar must not consider the adverse material further under section 190B. The government's amendments seek to apply the new, more onerous registration test to all claims currently on the register of claims. We believe it is an unnecessary task. The National Indigenous Working Group proposed amendments focused on those instances where registration via a low threshold test may have caused problems—for instance, in overlapping claims in response to section 29 notices.I indicate that because we have just passed amendments, including government amendment No. 73—and of course we have had discussions backwards and forwards on whether it is an amendment that has been moved or now the bill—it now means that the Greens-Democrats amendments need to be altered a little in line with the new situation. Therefore, where our amendment originally was to delete sections 6, 7, 8 and 9, I believe they will need to be renumbered 5, 7, 8 and 9. I am happy to be advised if that is not the case. This does give all participants in this debate a chance to reasssess the removal of the physical connection test. If it is believed, and it has been strongly argued by Senator Bolkus—I have to say that his arguments for his own amendments were not his most convincing—by the majority of members of this chamber that the physical connection test is not fair to indigenous people, this is the chamber's chance to address that.21:06:002120Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I seek some clarification because I am a little confused. I am not sure whether this amendment purports to amend the bill as presented to the chamber or amend the bill as amended by government amendment No. 73. There was some confusion in the last debate in December about some of these matters: we were amending things that had already been changed. I seek some clarification and, if necessary, amendment of the amendment, to ensure that it reflects what is now the bill before the chamber.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Chapman)—I assume the intent of the amendment moved by Senator Margetts was to omit new subsections 6 to 9. Perhaps Senator Margetts can clarify that.21:07:002120Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I was hoping that changing to 5, 7, 8 and 9 would do that.21:08:002120Bolkus, Sen NickSenator BOLKUSXE4SAALP00—Once again, this is an amendment to page 205 of the bill, line 27, `prima facie case'. That has already been amended by the preceding vote. As a consequence, amendment 237 needs to be further amended. What Senator Margetts would like to do is remove the prima facie case, which is 6, 7, 8 and 9. So, in a sense, we are probably talking about amendments to like provisions in the amendments that just went through. The impact of Senator Margetts's amendment will be the same. What we need to do is to reword 237 to say that government amendment 73 be amended to omit subsections 6, 7, 8 and 9.DX5MARGETTSSenator Margetts—5, 7, 8 and 9.XE4Bolkus, Sen NickSenator BOLKUS—Okay; 5, 7, 8 and 9 and replace them with 6 and 7. While we work out the impact of that, I am sure Senator Margetts will try to tell us.21:09:002120Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—What Senator Bolkus has suggested is what we are seeking to do—to omit 5, 7, 8 and 9 and replace them.21:09:002120Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I think other senators might be having the same trouble as I am with respect to this—that is, trying to work out the impact of this amendment. If we are bowling over 5 in the recently passed amendment, we are then trying to knock out `factual basis for claim native title'. If we do that, then we need to be sure as to what we will replace it with. If we are knocking out the physical connection, it does not seem to me that the Democrat-Greens amendment will replace it with all that much; in fact, I do not think there is a replacement there for it. With respect to sub clause 8, `No failure to comply with section 61A', in terms of disclosure of documents, there is a document-type clause which has been proposed by the Democrats-Greens.Also, subclause 9 under the amendment which was recently carried, provides for non-extinguishment of claim native title et cetera. There is no replacement clause for that particular provision either. Although Senator Margetts wants to move a couple of simple clauses, I think the impact of those really will be to render some unparallelled confusion in this part of the act. As a consequence, we do not support them.21:11:002121Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I am prepared to look at alternatives to that proposal. If Senator Bolkus is saying that he would support the removal of 7 and 8, perhaps I could get an answer from him as to whether that would be acceptable to him by way of amendment instead of 5, 7, 8 and 9.21:11:002121Bolkus, Sen NickSenator BOLKUSXE4SAALP00—What I am saying is that this really is not all that well thought out by the Democrats and Greens. There are intended and unintended consequences which go far in excess of what we contemplated and passed last time, and what we would be contemplating passing this time. Basically, a bit more thought to this might have worked out a more positive outcome, but to try to move these amendments now is a bit like crying over spilt milk.21:12:002121Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—The milk was spilt when the opposition agreed to a physical connection test. Very nice trying to blame it on the Greens now; it is not working, Senator Bolkus. I move:(237) Schedule 2, item 63, page 205 (line 27) to page 206 (line 24), omit subsections (5), (7), (8) and (9), substitute: (6) 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. (7) 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. Question put: That the amendment (Senator Margetts's and Senator Woodley's ) be agreed to.21:16:00The committee divided. (The Chairman—Senator S. M. West)9Allison, L. Bartlett, A. J. J.Bourne, V. *Brown, B.Lees, M. H. Margetts, D.Murray, A. Stott Despoja, N.Woodley, J.45Abetz, E. Bishop, M.Boswell, R. L. D. Brownhill, D. G. C.Calvert, P. H. Campbell, G.Carr, K. Chapman, H. G. P.Collins, J. M. A. Colston, M. A.Conroy, S. *Coonan, H.Crane, W. Crowley, R. A.Denman, K. J. Eggleston, A.Ellison, C. Ferguson, A. B.Ferris, J. Forshaw, M. G.Herron, J. Hogg, J.Kemp, R. Lundy, K.Macdonald, I. MacGibbon, D. J.Mackay, S. McKiernan, J. P.Minchin, N. H. Murphy, S. M.Neal, B. J. Newman, J. M.O'Brien, K. W. K. Parer, W. R.Patterson, K. C. L. Payne, M. A.Quirke, J. A. Reynolds, M.Sherry, N. Tambling, G. E. J.Tierney, J. Troeth, J.Vanstone, A. E. Watson, J. O. W.West, S. M.Question so resolved in the negative.10000CHAIRMANThe CHAIRMAN—Senator Margetts, do you wish to deal with 235 and 236?DX5MARGETTSSenator Margetts—No; there is no point in proceeding with them because, quite clearly, Senator Bolkus was happy to find reasons for not supporting them no matter what we offered.XE4BOLKUSSenator Bolkus—Too hard.DX5MARGETTSSenator Margetts—Too hard, yes.XE4BOLKUSSenator Bolkus—It wasn't too hard.DX5MARGETTSSenator Margetts—Therefore, I will not be proceeding with them.10000CHAIRMANThe CHAIRMAN—Senator Margetts, are you planning to move 224, 225, 226, 227 and 228?DX5MARGETTSSenator Margetts—No, Madam Chair.Amendments (by Senator Minchin) agreed to:(71) Schedule 2, item 63, page 203 (line 2), omit "3 months", substitute "4 months".(74) Schedule 2, item 67, page 209 (line 21), after "are", insert "and a description of the nature and extent of the native title rights and interests concerned".(75) Schedule 5, item 11, page 347 (line 30), omit "3 months", substitute "4 months".(76) Schedule 5, item 11, page 349 (line 4), omit "3 months", substitute "4 months".21:23:002122Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Greens (WA)-Democrats amendment 327A is to oppose part 4, item 11—that is, the retrospective elements. I am sure we have heard on many occasions people arguing about the injustice of retrospectivity. Here we want to remove the ability of people to retrospectively knock out claims on the basis of what many people have argued is wrong in terms of physical connection tests. Therefore, I implore the committee, I implore the Labor Party, I implore Senator Harradine and I implore all senators to remove the retrospectivity involved in this and they can do that by opposing part 4, item 11.21:24:002122Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I support amendment 327A, together with amendment 328. I think Senator Margetts's amendment was deliberated upon last time and we hope it is possible to get it up this time.21:24:002122Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—Obviously the government does not support this amendment. We first moved the proposed new registration test at the end of June 1996 by way of the introduction of a bill into the House of Representatives. What is proposed is not retrospective. It was made clear then that the new registration test would apply to all claims made after that date. That is absolutely the norm for many government actions and proposals. It certainly applies to all budget proposals. Notice was given by way of the introduction of that test then that all future claims would be subject to the new registration test, so it is not retrospective.We now have over 700 claims in the system. Many of them, of course, are causing the very problems which indigenous groups and others have sought to have remedied by the application of a new registration test. So it makes a nonsense of the whole proposal, and I would have thought the ALP would recognise that it makes a nonsense of all of this if every single claim that is currently in the system—some 750, covering nearly 50 per cent of Australia—is immune from this test. We have all been wasting our time if that is the proposition.21:25:002122Bolkus, Sen NickSenator BOLKUSXE4SAALP00—Can I just get some clarification from Senator Margetts. The amendment you said you were moving was No. 328. If it is not that, there is some validity in Senator Minchin's argument. But it is No. 328, is it not?21:26:002122Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—The amendment that I am moving is No. 327A to remove the retrospectivity, and No. 328 later replaces it with a better option. It is a bit hard to replace it until we remove the existing section, so that is what we will be attempting to do.Quite frankly, I think it is despicable to treat human rights as if it were a sales tax bill. If this is what the government is suggesting is the right thing to do, perhaps next time there is a business related bill which is not a tax bill we will see if the government treats people the same way and see what kind of response it gets. I do not think it is the right thing to do, and I thought for an instant that Labor was going to support removing that section to be replaced by No. 328. There is not a lot of point in moving No. 328 unless we have opposed the existing section. Perhaps I could get some clarification on what the opposition's position is on No. 327A to oppose item 11.21:27:002123Bolkus, Sen NickSenator BOLKUSXE4SAALP00—Our position is that No. 328 is an acceptable alternative. But looking at No. 327A, once again, to get the full ramifications of that, my understanding is that last time we did not adopt a measure like No. 327A, but we adopted the regime as reflected in No. 328. My other information is that, if the Democrat-Greens (WA) amendment No. 327A is not successful, the Democrat-Greens would move reconsideration of item 11 and move No. 328. So my information is that there is not incompatibility between not supporting No. 327A and supporting No. 328. I will double check that while the debate continues, but that is the starting point that we have.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Reynolds)—The question is that schedule 5, part 4, stand as printed.Question resolved in the affirmative.21:28:002123Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I presume that No. 327A was not successful. So, in taking up the point that Senator Bolkus has made and as it is described on the running sheet, I move reconsideration of item 11 and move amendment No. 328, which is quite a long amendment. Therein, you will notice that the Democrat-Greens (WA) amendment puts in a whole new registration regime. I move:(328) Schedule 5, item 11, page 347 (line 16) to page 351 (line 11), omit subitems (3) to (11), substitute: Application accepted for registration after 27 June 1996(3) If an application was registered after 27 June 1996 in relation to land or waters that have not been the subject of a notice under section 29 of the old Act, or a corresponding provision of a law of a State or Territory covered by a determination under subsection 43(1) of the new Act or old Act, the relevant Minister of the State or Territory in which the land or waters are situated may request the Registrar to deal with the application or any part of it under the new Act. (4) If the Registrar agrees to accept the request under subitem (3) or a part of it, the Registrar must: (a) refer the request to the applicant and the representative body for the area concerned; and (b) advise the applicant and the representative body that the representative body may, within 60 days after the request is referred, certify in accordance with its certification functions (see section 203BE) the application or part identified by the Registrar (subject to any amendment made by the applicant and considered by the representative body); and (c) if the application or part is not certified by the representative body within that period, or within a further period agreed between the Registrar and the representative body—consider the application under section 190A of the new Act. Overlapping applications(5) If, at the commencement of this Act, there is more than one application on the Register in relation to the same area of land or waters, the Registrar must: (a) consider whether the native title rights and interests claimed may consistently be held by different native title groups; and (b) as soon as is reasonably practicable, advise the applicants and the representative body or bodies for the area of his or her view and of the reasons for that view; and (c) request them to provide information and submissions as to whether it is appropriate for the expeditious conduct of the applications and the processes of the Act that the applications be amalgamated in whole or in part; and (d) consider any information or submissions supplied pursuant to the request; and (e) determine whether it is appropriate for the applications to be amalgamated, in whole or in part.(6) If the Registrar decides that it is appropriate that the applications be amalgamated, in whole or in part, the Registrar must: (a) advise the applicants and the representative body or bodies for the area of that fact; and (b) request the applicants to amend their applications so as to ensure that: (i) rights and interests that are common between the groups are the subject of only one application; and (ii) separate rights and interests are the subject of other applications; but only to the extent that the native title group concerned in relation to the separate rights and interests is different from the native title group in relation to the common rights and interests.(7) If the Registrar notifies the applicants and the representative body or bodies referred to in subitem (6): (a) the applicants must, within 60 days after receiving the notification, advise the Registrar whether they have been able to reach agreement as to the identity of the appropriate applicant for those rights and interests and, if they have, advise the Registrar which single application is to remain on the Register in relation to those rights and interests; and (b) if, within that period or a longer period allowed by the Registrar, the applicants have not reached agreement, the Registrar must advise the representative body for the relevant area of that fact.(8) If the representative body receives an advice under paragraph (7)(b), it must attempt by conciliation to obtain agreement between the applicants as to the identity of the appropriate applicant, and the appropriate description of the native title group on whose behalf the application is made, for the rights and interests.(9) If: (a) the representative body is not able to achieve a resolution within 6 months of the matter being referred to it by the Registrar; and (b) either: (i) it is satisfied that a resolution is not likely to be achieved within a reasonable time; or (ii) a notice under section 29 of the new Act, or a corresponding provision of a law of a State or Territory covered by a determination under subsection 43(1) of the new Act, is lodged in relation to any part of the land or waters concerned; the representative body must refer the matter to the arbitral body within 14 days. (10) If the representative body does not refer the matter to the arbitral body, any applicant may do so.(11) If the matter is referred to the arbitral body, the arbitral body must determine: (a) which applicant is to act for the whole of the area covered by the applications in relation to which common rights and interests are claimed (if that applicant consents to act); and (b) redefine the native title group so that, to the greatest extent possible, those who were otherwise covered by the overlapping applications are members of the native title group of the remaining application.(11A) If, under this item, a particular applicant and a set of native title rights and interests are defined, the Registrar must amend one application accordingly and remove the other applications from the Register or amend them so that they are limited to rights and interests not the subject of the common application.(11B) If a notice is given under section 29 before the Register is varied under subitem (11A), except with the consent of the negotiation parties (which for this purpose includes each of the native title parties at the date on which the section 29 notice was given) the negotiations must not commence, and the relevant period specified in section 35 does not commence to run.(11C) If an application is required to be dealt with under subitems (3) and (4), and subitem (5), it should be dealt with first under subitem (5).21:29:002124Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I was about to say my understanding was that No. 328 was conditional upon No. 327A passing, but I am being advised that that is not necessarily the case.21:29:002124Bolkus, Sen NickSenator BOLKUSXE4SAALP00—My information is that it is conditional on No. 328, not on No. 327A failing. If one was to look at No. 327A, it would remove from pages 347 to 351 provisions applying to the registration of claims primarily with respect to pre-June 1996. Amendment No. 328 is a provision which goes to the application for registration after June 1996, and then it goes to overlapping applications and so on with respect to that.I presume that is the distinction between one and the other and what has been proposed here is a new regime for post 27 June 1996. As a consequence that is why I thought it was compatible to adopt this particular provision in respect of those applications. I do not know if the minister is getting the same advice as I am. He may not be getting the same advice as to supporting the amendment, but he may be getting the same advice as to the impact of the amendment. As I said earlier, although we are still checking this, given that we are talking here of post June 1996 and a regime which was very close to the one that we pursued during the last deliberations on this bill, we indicate that we are supporting it.21:30:002125Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Greens-Democrat amendment No. 328 deals with the retrospective review of overlapping claims and claims which are identified by the appropriate minister as potentially not satisfying the new test. The process provides in the first instance for reconsideration of claims by the applicants and representative bodies. If it does not achieve a result within a specified period, the registrar will be able to assess the claims against the new test.21:31:002125Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I just indicate that we are not in a position to accept this amendment. I do not have the time to consider it in full detail, but we do not see any reason to depart from the propositions we have put as to how claims made after 27 June 1996 should be dealt with. I do not want to prolong the debate, but I indicate that we would be opposed to No. 328.Amendment not agreed to.21:32:002125Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I move:(3) Schedule 1, item 9, page 14 (lines 23 to 28), omit subsection (9), substitute:Exclusion of acts benefiting Aboriginal peoples or Torres Strait Islanders (9) An act is not a previous exclusive possession act if it is: (a) 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) 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 (c) the grant or vesting of any thing over particular land or waters, if at the time a thing covered by paragraph (a) or (b) is in effect in relation to the land or waters. Note: The expression Aboriginal peoples is defined in section 253.Exclusion of national parks etc. (9A) An act is not a previous exclusive possession act if the grant or vesting concerned involves the establishment of an area, such as a national, State or Territory park, for the purpose of preserving the natural environment of the area.Effect of exclusions (9B) To avoid doubt, the fact that an act is, because of any of the previous subsections, not a previous exclusive possession act does not imply that the act is not valid.(4) Schedule 1, item 9, page 19 (after line 21), at the end of Division 2B, add:23JA Attribution of certain acts If: (a) a previous exclusive possession act or a previous non-exclusive possession act took place before the establishment of a particular State, the Jervis Bay Territory, the Australian Capital Territory or the Northern Territory; and (b) the act affected land or waters that, when this section commences, form part of the State or Territory; then, for the purposes of this Division, the act is taken to be attributable to: (c) the State; or (d) if the Territory is the Jervis Bay Territory—the Commonwealth; or (e) if the Territory is the Australian Capital Territory or the Northern Territory—that Territory. Note: The meaning given to the expression attributable by section 239 will apply for the purposes of this Division to all other previous exclusive and non-exclusive possession acts.(5) Schedule 1, item 12A, page 123 (lines 3 and 4), omit subparagraph (1)(b)(ii), substitute: (ii) the area is held expressly for the benefit of, or is held on trust, or reserved, expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders; and(6) Schedule 1, item 12A, page 123 (line 13), omit "creation of the trust", substitute "doing of the thing that resulted in the holding".(7) Schedule 1, item 12A, page 123 (line 16), omit "on trust".(8) Schedule 1, item 12A, page 124 (line 13), omit "declaration", substitute "dedication".(9) Schedule 1, item 49, page 140 (line 24), omit paragraph (1)(a), substitute: (a) anything set out in Schedule 1, other than: (i) a mining lease; or (ii) an interest created by or under legislation that creates interests only for the benefit of Aboriginal peoples or Torres Strait Islanders; or (iii) an interest created expressly for the benefit of, or held on trust expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders; or (iv) any other interest created in relation to particular land or waters, if at the time an interest covered by subparagraph (ii) or (iii) is in effect in relation to the land or waters; or(10) Schedule 1, item 49, page 141 (after line 3), at the end of section 249C, add:Regulations to cover exclusive possession interests only (3) Before the Governor-General makes a regulation for the purposes of paragraph (1)(b) declaring a particular interest to be a Scheduled interest, the Minister must be satisfied that the interest confers a right of exclusive possession that extinguishes all native title rights and interests over the land or waters concerned.Government amendment 3 will replace subsection 23B(9) with a new subsection that ensures that certain acts, including grants specifically for the benefit of Aboriginal people, are excluded from the confirmation of extinguishment provisions. Government amendment 4 rectifies a gap in the confirmation of extinguishment provisions by enabling a state or territory to confirm the effect of previous exclusive possession acts and previous non-exclusive possession acts that took place over land that now forms part of that state or territory but did not at the time the grant was made. Amendments 5 to 7 make minor amendments to section 47A to ensure that that provision, which enables certain extinguishing acts to be ignored when a native title claim is being determined, applies to areas which have been granted or vested, whether on trust or otherwise, expressly for the benefit of indigenous people.Government amendment No. 8 replaces the word `declaration' in section 47B with the word `dedication', simply to ensure that the terminology used in 47B to refer to land reserved for a purpose is consistent with the terminology used elsewhere in the bill when referring to reserved land. Both amendments 9 and 10 affect the definition of `scheduled interest' set out in proposed section 249C in the bill: the grant of a scheduled interest before 23 December 1996 can be confirmed to have extinguished native title.We are putting these amendments in good faith. We think they should be supported by the Senate; the confirmation regime was passed through the Senate last time. These amendments do pick up some anomalies which we have identified in discussions with all the other parties and with the various interests. While there may be those in the chamber who do not like the confirmation provisions at all, I would have thought they would see these as acceptable and sensible improvements to the confirmation regime.21:35:002126Bolkus, Sen NickSenator BOLKUSXE4SAALP00—The opposition had enormous problems with this extinguishment regime last time and those problems really have not gone away. The government here has undertaken a speculative exercise of attempting to predict what the courts may decide about the extinguishing effect of inconsistent grants of interest on native title.The government describes this section as confirmation of extinguishment, implying that these provisions merely confirm the common law position. However, it is clear to all of us on this side of the debate that these provisions do in fact overreach the common law and in themselves are legislative extinguishment of native title. The government, for instance, says that people have assumed that such interests as freehold, all types of leases, public works, et cetera, extinguish native title. But I think it is clear to say that the Wik decision left this assumption in a very unclear situation. The government says it needs to make clear which interests extinguish native title. However, this is very much a bad description of the effect of its legislation. It is misleading.The process, for instance, by which the government has unilaterally determined what will extinguish native title is shoddy. It was exposed as such by parliamentary committee after parliamentary committee, and the process will result in the extinguishment of native title throughout the country with consequent compensation implications for the taxpayer. This is a provision that also rejects the principle adopted by Wik: the principle of coexistence. In terms of the general outline of this provision, what we have here are bucketloads of extinguishment: we have them by way of division 2B for instance.The only justification for a legislative extinguishment regime is to allow development and interest to be granted over land without having to consider native title at all. To us, that is unacceptable. Extinguishment is not necessary for validation of titles or protection of the existing valid interests in the land. These interests do prevail already over native title; case after case has indicated that as well. What we have here is legislation with a sole purpose of ensuring that future interests can take place unimpeded in any way by native title. What we have here is not just extinguishment; we have discriminatory extinguishment. We have extinguishment also when, as I said, the common law leaves open whether it is suspension or extinguishment.As I said, the principles of the Wik case are overturned by this particular part of the government's 10-point plan. The government, for instance, has attempted to ensure that native title will be partially extinguished by the grant of a non-exclusive possession act, a pastoral lease. Recognising this injustice, the Senate voted last December in favour of the amendments by Senator Harradine which confirmed the position at common law—namely, that native title is suppressed and not extinguished by the grant of a pastoral lease. We continue to support those amendments. When one looks at what extinguishes native title, when one looks at what the government has tried to ensure extinguishes native title, one finds a long, exhaustive list of interests such as rifle ranges, Defence purposes and water tanks. It is amazing to what extent the government has gone to find ways of extinguishing native title.We say now that there still needs to be a focus on the government's approach to legislative extinguishment. We say the government still exceeds the common law. The claim that division 2B is intended to reflect the common law is still wrong. For instance, section 23J gives that game away. Section 23J says that compensation is payable where the legislation goes beyond the common law and extinguishes native title. It is a safety net provision but one that basically is a confession by the government that they go in excess of the common law. In relation to the schedule of extinguishing interests, Senator Minchin says there are some 60,000 leases in division 2B, many of them in the schedule. Yet the way that schedule was drawn up, the way people's native title rights were extinguished on such a massive scale behind—as we found out—closed doors was in direct violation of the methodology made painstakingly clear by the High Court in the Wik decision. The judges of the court said that, when you are dealing with people's property rights and asking the extinguishment question, you must look carefully, firstly, at the legislation which authorises Crown grants; secondly, at the individual lease documents given to land holders to ascertain the precise rights; and, thirdly, at the native title rights which the local people assert over the land.It is only then that you can come to a conclusion about inconsistency and extinguishment. But the Native Title Act left the extinguishment question to the courts and the common law to decide on a fair and just basis according to law. This government's proposal has ignored the detail of what was demanded by the court. Basically what we have here is a check list which will, I am sure, throw up error after error. The other important aspect in this debate is the question of constitutional validity. Eminent lawyer after eminent lawyer has told parliamentary committees that lack of notification associated with division 2B acquisitions of property was a matter of constitutional concern. If indigenous Australians are not notified before their property rights are acquired and they are not given an opportunity to object, how can the bill be said to provide just terms and pass the procedural aspects of the just terms constitutionality test? We continue to say the government's earlier overreach is a concern. The government, as Senator Minchin has said, is moving amendments. Some amendments will curtail the overreach in one of two ways. Subsection 9 of 23B will be widened so that it excludes all the appropriate forms of beneficial land ownership and trust or for the benefit of indigenous people, and areas created by divesting or grants to protect the national environment such as national parks have been excluded. These are beneficial amendments. As a consequence, we will support them. Our amendments still go to the protection against overreach, for instance, in the definition of previous exclusive possession act. We also go to the question of 23B and the extinguishment as well. I say at this stage that the Greens-Democrats amendment to oppose division 2B is one that we will support when it comes up for a vote. We supported it last time, but, as the Senate knows, we were beaten by the numbers in that respect. I also say that we have taken the government and the High Court at their word in respect of factors that are relevant in terms of section 23B and defining acts which the government says extinguish native title. Proposed subsection 9B excludes from the definition of a previous exclusive possession act a category of act which, in our view, cannot be included on any fair or reasonable basis. It excludes leases which exceed 25,000 hectares. The High Court said in Wik that the size of the lease in question was a very relevant consideration in deciding whether a particular grant extinguishes native title. In fact, even the government agrees. It lists size as one of the 10 relevant factors in its explanatory memorandum. Taking the government and the High Court to word, we say that 25,000 hectares is a very large area in anyone's language. It is impossible how anyone could argue that every lease of that dimension would necessarily require exclusive possession in order to give effect to the grant. Excluding such grants does not mean that individual lease holders of large properties are prevented from proving in court that their particular grant necessarily implies exclusive possession. It simply means that we want to protect against the government sweeping every one of these very large grants indiscriminately into the extinguishing category. There are other amendments as well which we will pursue, but, as I say, there are both constitutional and fairness problems in respect of the government's proposals put up the first time and also put up this time. We will be pursuing amendments once again to ensure that we protect the position that was passed in the Senate last year.21:44:002128Boswell, Sen RonaldSenator BOSWELLYE4QLDNP10—The opposition's amendment is quite ridiculous. They want to remove certain lease holders from the definition of exclusive possession simply on the basis of the size of the lease. They are taking it upon themselves to set an arbitrary figure of 25,000 hectares. I do not know how they reached 25,000 hectares. Why not make it 40,000 hectares? Why not make it 50,000 hectares? If it is an exclusive possession, it is exclusive possession. Exclusive possession is not determined by the size of the lease. I think they have simply plucked a number out of the air. If there is one lease in Queensland that is 25,000 hectares exactly and there is another one that is 25,000.82 hectares—0.82 hectares is about the size of a normal household block; and the person that is sitting on the 25,000 hectares is probably out too—XE4BOLKUSSenator Bolkus—Twenty-five thousand hectares is a normal block? Do you live in Texas? YE4Boswell, Sen RonaldSenator BOSWELL—I said 0.82 of a hectare. One lease is 25,000 hectares and the other is 25,000.82 hectares. You take an arbitrary figure and the people who fall on one side of the line are in and the other ones are out.A perpetual lease is a perpetual lease and it is not determined by the size; it is determined by the way the lease was issued. Those leases—of 25,000 hectares and more—have been included in the exclusive possession schedule. I cannot see any reason why some arbitrary decision would be made to exclude anything over 25,000 hectares. It really has no bearing on the connection to the Wik decision at all. There were two test cases on the leases in Wik: one was 289,820 hectares and the smaller one was 138,560 hectares. They are a long way from the 25,000 hectares that the government has decided to put in the category of native title.I think it is a quite silly and stupid amendment. I do not know how the figure of 25,000 was reached. Perhaps Senator Bolkus might tell us the way he reached it. Did he look into a crystal ball or did he come up with it some other way?21:47:002129Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—There is some clarification I need from Senator Bolkus in relation to opposition amendment N3. There is some conflict with Greens-Democrats amendment 12A. I would like to ask him—and I hope he has time to answer—what is the effect of opposition N3? What would be the reason for not supporting our 12A instead? N3 seems to be extinguishing crown to crown grants on titles that come under a number of categories, including residential and other categories. I wonder if Senator Bolkus can explain the rationale for not supporting 12A instead of his N3.21:47:002129Bolkus, Sen NickSenator BOLKUSXE4SAALP00—Very briefly, as Senator Margetts rightly said, N3 is a modified version of an amendment which passed the Senate last year. It is an amendment which again corrects the overreach in the definition of a `previous exclusive possession act'. It excludes, for instance, grants of an interest between different arms of what is the same basic entity—for instance, crown to crown—whether it be a statutory authority or a state or federal government. It applies the same exclusion of the criteria of vesting of an interest in land in the same entities. Proposed subsection 9A of 23B also contains an appropriate protection where the land is subsequently put to residential, agricultural or commercial uses. At this point the exclusion no longer applies.The amendment also leaves it to the common law to determine what effect on native title those transfers between different arms of government—crown to crown—have. It is something that I think we pursued last time. We did not want to preclude a non-extinguishment capacity by adopting the extinguishment principle adopted by the government. It also maintains consistency with the current Native Title Act, which excluded these interests from the automatic extinguishment category.So the advice is that, in essence, it does what we set out to do last time, but it has been amended probably more in style than anything else to pick up some of the technical problems with it. Given the fact that it is 45 seconds before 9.50 p.m. now, I should take on notice any further information which would clarify the modification. As I say, the substance is the same. It is an amendment which was developed by the indigenous working group lawyers and ourselves in consultation with other parties. My understanding is that, in essence and in substance, it does no different to what was passed last time. If I can talk for five more seconds and take the rest of the answer on notice for tomorrow morning, that would probably be a fair conclusion to the day's proceedings.Progress reported.Adjournment212910000PRESIDENTThe PRESIDENT—Order! It being 9.50 p.m., I propose the question:That the Senate do now adjourn.212921:50:002129Macdonald, Sen IanSenator IAN MACDONALDYW4QLDLP10—I want to take a couple of minutes of the Senate's time tonight to speak of a great Australian who passed away recently. The former mayor of Mount Isa Franz Born died during the week of 27 March and was buried in Caloundra. He was the mayor of Mount Isa from 1975 to 1985 and was involved in a number of significant community projects, including the construction of the Mount Isa Civic Centre and library and Lake Julius.Through the auspices of the North West Star newspaper I have learnt of some of the tributes paid to the late Franz Born by friends and community leaders, including the current mayor Ron McCullough, Mr Fred Binzer and Mr Joe Schmider who gave some overview of the work that Mr Born did in the north-west during his time. Franz Born will be remembered as a great citizen of Mount Isa and of the north-west. A perfectionist in all he did, Mr Born came to Mount Isa in the early 1950s, travelling on a motorbike via dirt roads, after he had emigrated from Germany.Attracted by the employment prospects, he took up a position as an underground miner and quickly progressed to foreman before leaving the mine to set up Mount Isa's brickworks—the first in Mount Isa. The business still survives in that city. He also built the Sunset Shopping Centre, which he used as a base for his smallgoods factory. That factory enabled him to draw on the skills he had learned as an apprentice butcher in Germany.Mr Born was instrumental in the establishment of the Concordia Club in Mount Isa, which celebrated the strength of the German-Austrian migrant community in that city. His community service was recognised with the presentation of a Class 4 badge of merit by the Federal Republic of Germany during his time in Mount Isa. His entry into local politics as mayor of that mining city in the north-west was a logical progression of his community commitment.I first met Franz Born in the early 1980s. Regrettably, I met him only very briefly when he was elected to the Liberal Senate team in Queensland at that time. He was not successful, being a little way down the ticket, but I often think that it was probably because of the influence that he and his supporters in the north had at that time in getting him on to the ticket that eventually led to my election, coming from the north, to lead the Liberal Party Senate team from Queensland.After Franz Born left the mayoralty of Mt Isa, he moved to Caloundra in semi-retirement but continued his interest in local politics there. He was involved in the Caloundra Shire Council for several years. I am told he spent two terms there and my colleague Mr Peter Slipper, the member for the federal electorate that takes in Caloundra, has told me that Mr Born was well remembered for the distinctive and attractive design work that was done in Bullcock Street, one of the main city centre streets in Caloundra. A smallgoods manufacturing plant that he started on the Sunshine Coast is still operating and, despite changing hands, has maintained its original name of Franz Smallgoods.Mr Born is survived by his wife Cobi and children Sonja, Brigitte, Martina and Frank. I think that the Senate should recognise the work of a great Australian, a person who did a tremendous amount of work in the north and north-west for his community and for the region generally. I extend, I am sure on behalf of all Queensland senators and, in fact, on behalf of senators generally, my condolences to his wife and family.Madam President, in the couple of extra minutes of time left available to me, I would like to mention to senators a matter that I know will be of great importance to them—and I am sure they already know about it—and that is that 21 March of this year marked the 50th anniversary of Australia's research expeditions to Macquarie Island in the Great Southern Ocean.Macquarie Island is a sub-Antarctic island located in the Southern Ocean at a latitude of 54 degrees 30 minutes south and 158 degrees 57 minutes east. It is 1,500 kilometres south-east of Tasmania and 1,300 kilometres north of the Antarctic continent. Macquarie Island is 34 kilometres long and five kilometres wide at its widest point. It has a total surface area of 128 square kilometres. It is part of the state of Tasmania and is a state reserve managed by the Tasmanian Parks and Wildlife Service.Discovery of the island is attributed to Captain Frederick Hasselborough who on the brig Perseverance sighted it whilst on a sealing voyage out of Sydney in July 1810. It was named after the then governor of New South Wales, Lachlan Macquarie. This discovery was to lead to extensive exploitation of the local fauna and by the end of that year bases had been established on the island to take fur seals for their skins and elephant seals for their oil. These commercial activities had a devastating effect on the seal and penguin populations, with some species still recovering.During Sir Douglas Mawson's visit from 1911 to 1914, the first scientific station was established on the island and, in addition to conducting geomagnetic observations and mapping the island, studies were made of the island's botany, zoology, meteorology and geology. The Macquarie Island expedition also established the first radio link between Australia and Antarctica by setting up a radio relay station on Wireless Hill that could communicate with Mawson's main expedition group at Commonwealth Bay and also with the Australian mainland.The island was declared a wildlife sanctuary in 1933 and, with the establishment of the Tasmanian National Parks and Wildlife Service in 1971, became a conservation area. It was upgraded to a state reserve in 1972 and in 1978 was renamed the Macquarie Island Nature Reserve. The Howard government nominated Macquarie Island for inscription on the World Heritage List in June 1996 and the nomination, which was made jointly with the Tasmanian government, was actually inscribed on the World Heritage List on 3 December 1997.Macquarie Island is the oldest continuously occupied ANARE station below 50 degrees south.Senator Robert Ray interjecting—YW4Macdonald, Sen IanSenator IAN MACDONALD—I know you are very interested in this, Senator Ray.UI4RAYSenator Robert Ray—I am; I am paying attention.YW4Macdonald, Sen IanSenator IAN MACDONALD—We as Australians can be proud of the work that is undertaken at Macquarie Island and elsewhere by members of Australia's Antarctic program. The research work undertaken in some of the world's most difficult conditions is both of international and of practical importance. I was pleased to be able to participate in the commemoration of this significant anniversary of one of the world's most remote and special places. It was with some pride that, on behalf of the Australian government and the Australian people—by telecommunications, because I was not there myself—I unveiled on 21 March 1998 a plaque commemorating the 50th anniversary of the station. I commend the great work that all the expeditioners who have worked for Australia over those years have done in that very remote place. It is one of the places that we are very proud of, and I am sure all senators join with me in congratulating all of those who have served on Macquarie Island over the past 50 years.213121:59:002131O'Brien, Sen KerrySenator O'BRIEN8O6TASALP00—This morning, there was a special hearing of the Senate Economics Legislation Committee to consider whether or not a senior officer of the Department of Workplace Relations and Small Business, Mr Derren Gillespie, had deliberately misled the committee in August last year. Before asking the committee to consider the matter, I provided the relevant material to the Clerk of the Senate and received the following advice:. . . the extracts from the evidence which you quote appear to indicate that there is ground for concluding that at least contradictory evidence was given, and perhaps that misleading evidence was given at last year's hearing.He advised that there were two options: the committee could seek by further inquiry to clarify the apparent contradiction in the evidence; or the matter could be raised as a matter of privilege.I chose the first option as the most appropriate step. Unfortunately, this morning's proceedings have failed to clarify the situation. However, before deciding whether I wish to take this matter further, I will consider the Hansard of this morning's hearing when it is available. The evidence in question was given by Mr Gillespie to the economics committee on 18 August 1997. For the information of the Senate, I will go through the relevant sections of the Hansard. On page E82, Mr Gillespie said:I think the plain fact of the matter is that within the portfolio of Transport and Regional Development there is a contract let to some work, the details of which I am certainly not alive to.I note that Mr Gillespie uses the term `alive to' to mean `aware of', and we had established that in the hearings of the committee. To continue, in evidence given to the same committee earlier this year, we were told that Mr Gillespie attended a presentation to the department on the first ACIL report in 1996.We now know that a presentation was given by an ACIL representative on 9 September 1996. Departmental officers present at the briefing were Dr David Rosalky, Rex Hoy and Derren Gillespie. Mr Gillespie now tells us that he thought the questions were about the terms of the contract not the work to be done. That is, he thought the questions were about the actual terms of the contract signed by the consultant, however we already knew that information. That is how we found out that ACIL was doing this work. The Department of Transport and Regional Development had provided that information in answer to a question on notice about consultancies it had let. In August last year, Mr Gillespie was asked:To your knowledge does the ACIL plan fit within the terms of the Workplace Relations Act or does it contemplate action outside the legislative framework?He replied:I do not have any insights into any of the work that ACIL may have done under that contract.Again, how does that fit with the fact that Mr Gillespie attended the presentation by ACIL on its work on 9 September 1996? How does that fit with Mr Gillespie actually reading the report in the offices of the department? The Department of Transport and Regional Development has now advised that on 23 December 1996, Mr Gillespie was permitted to access the report and a room in which he could peruse the document was provided. Officers did not permit him to copy the report or to remove it from the area.Any reasonable interpretation of this evidence suggests that his claim to have no insight into the work that was done under the ACIL contract just cannot be accepted—not how much the contract was worth, not who did the work, but what the consultancy actually involved and how that fitted in with the work he was doing. I remind the Senate that Mr Gillespie received a full briefing by the ACIL consultant—I assume David Trebeck—on 9 September 1996.Mr Gillespie also participated in a meeting called to discuss the government's waterfront strategy on 16 December 1996. That meeting was attended by the Minister for Workplace Relations and Small Business, Mr Reith, the Minister for Transport and Regional Development, Mr Sharp, and representatives from stevedore companies. I find it hard to believe that the details of the ACIL report were not discussed at that meeting.Mr Gillespie read the ACIL report in the offices of the Department of Transport and Regional Development on 23 December 1996. He was given the report and a room in which to read it. Mr Gillespie advised that he thought the questions related to the second ACIL contract. That consultancy was not completed at the time that Mr Gillespie gave this evidence. I now go to the next reference in Mr Gillespie's evidence. In August last year, he told the committee:I am not alive to any detail of any strategy that might be being developed.We now know that, on 27 February 1997, the minister's office was provided with a copy of what Mr Gillespie described in a minute sent to the minister on 10 March as `the waterfront paper prepared by officials'. Later in the minute he said:As the strategy paper noted, a dispute—of itself—would not produce desired change on the waterfront.He also stated:Attachment C deals with the termination of the workforce; this paper is included in the strategy document prepared by officials.Later he says:. . . you might identify matters that might be further worked up such as detailed strategies for achieving significant workforce change; . . . That minute to the Minister for Workplace Relations and Small Business, dated 10 March 1997, was signed by Mr Gillespie as `Assistant Secretary Industry Strategy Team'. In August last year, he told the committee that he had no knowledge of any strategy that was being developed, and yet six months earlier he had provided his minister with a strategy paper. Mr Gillespie called it a strategy paper in a minute to the minister which he signed off personally.Mr Gillespie was the officer in the department who was actually developing the strategy. His explanation was that he thought the questions about a strategy related only to work under way under the ACIL 2 contract. Of course, the questions did not. ACIL 1 and ACIL 2—as they are now known—are two parts of a single consultancy. ACIL 1 was to provide advice regarding an industrial relations strategy for the implementation of waterfront reform commenced in May 1996 and finished in August of that year. ACIL 2 followed on from that consultancy. It commenced in June 1997 and finished in October.Mr Gillespie's strategy paper must have been built around the first ACIL report. He had been briefed on the report, he had read the report and he had attended a meeting with ministers, consultants, advisers and stevedores to discuss the strategy. It would appear almost impossible to separate out the ACIL 2 consultancy in relation to questions about a strategy, but Mr Gillespie claims that that is exactly what he did.There is one other matter I wish to address concerning the government's waterfront strategy. It was confirmed this morning that the Department of Transport and Regional Development participated in the development of the waterfront strategy paper provided to Mr Reith on 27 February 1997. The document was developed progressively by senior officers from both departments. I have been advised that Mr Gillespie amended that strategy paper agreed with the transport department officers—I assume Dr Feeney and Mr Bills, the two senior officers in the maritime transport area—and provided it to Mr Reith (again, I assume, as an agreed paper) without further discussion with or reference to those transport officers.I have also been advised that Mr Gillespie amended the strategy paper by deleting one of the strategy options and increasing the attractiveness of the confrontationist option; the option that encouraged the use of the provisions of the Workplace Relations Act and the Trade Practices Act to achieve the sacking of the MUA work force and the financial ruin of the MUA. I have been further advised that Mr Gillespie pushed this option in the course of his participation with Dr Webster, other consultants and political advisers in many meetings with stevedores and other employers.It seems to me that Mr Gillespie has put himself in a difficult position. He has become an active player in what is basically a political campaign by the government against the MUA and the ACTU. It is therefore difficult for me as a politician to separate him from that political process. There are also a number of people who have a detailed understanding of this whole process from the letting of the first ACIL contract on. These people are apparently keen to see the truth come out. If more information about this exercise is provided, it will quickly be exposed. In my opinion, this issue still has a long way to go.213322:09:002133Colston, Sen MalcolmSenator COLSTONPF4QLDIND00—Tonight I wish to canvass matters related to possible illegal activity by Department of Senate officials, including the Clerk of the Senate and the Usher of the Black Rod. It is also related to possible similar activity on the part of, amongst others, Australian Federal Police officers and senior members of the Office of the Director of Public Prosecutions, including Mr Grant Lalor.The specific allegations made against those individuals include: corruption of testimony provided by Crown witnesses, collusion to provide false evidence, contempt, attempts to influence testimony provided by defence witnesses and unauthorised provision of information by Commonwealth officers.I understand that the Attorney-General and you, Madam President, may have been pro vided with this information following written requests. In the case of yourself, Madam President, I understand that you declined to take action on the material with which you were presented. The Attorney-General, on the other hand, has referred the matter to his department for consideration. I understand that this may have occurred up to a month ago, and there remains no response, despite a number of officers being involved in strategy formulation.To provide an overview of the matters I will canvass, I will read the following questions which I attempted to place on notice.2134The PRESIDENTThe PRESIDENT10000PON/A10—Order! Senator Colston, I wish to make a statement in relation to the questions that you are referring to.In a statement made on 1 April 1998, the Acting Deputy President indicated that Senator Colston would not be permitted to refer in debate to matter contained in a document which he has sought to have laid before the Senate and in questions on notice which he has lodged but which I have declined to include on the Notice Paper.It was indicated that I wished to take advice to determine whether I should not allow this material to be published through the privileged forum of the Senate because it may violate the Senate's sub judice convention in that it could prejudice the legal proceedings pending in respect of Senator Colston.I determined that I should seek independent legal advice on this question immediately after the questions were lodged by Senator Colston. I have now received advice from senior counsel of the Australian Capital Territory that the publication of any of the questions Senator Colston lodged would have a tendency to interfere substantially with the fair trial of the matters which are before the court. Counsel's advice concludes as follows:In summary, then, in my opinion all 61 questions could prejudice the trial of Senator Colston. They do this because they could tend to interfere substantially with the fair trial of Senator Colston, the test applied by the courts in dealing with contempt proceedings.In giving this advice, counsel has had regard to the relevant law of contempt of court and not to the Senate's sub judice convention. But it is clear that, in the terms of that convention, the questions involve a substantial danger of prejudice to proceedings before the court. I therefore do not intend to allow the questions to appear on the Senate Notice Paper or to allow the content of the questions to be published in debate in the Senate.I have also been advised that the publication of the whole of the advice itself, because it refers to the content of the questions, should not occur. I will however give consideration to how much of the advice can be released before making any of the text of the advice available.PF4The PRESIDENTSenator COLSTON—by leave—I move:That the Senate take note of the ruling.I seek leave to continue my remarks later.Leave granted; debate adjourned.213422:14:002134Ray, Sen RobertSenator ROBERT RAYUI4VICALP00—I think Senator Ferguson wants to make a contribution and I am not going to try to talk out time, as has occurred to me a few times. I only wanted to rise tonight to comment on the use of computers in modern society and the scope that it gives to fraud.It has come to my attention, given the massive internal difficulties in the Queensland branch of the Liberal Party, that certain people have been assisting us with information. I think the most startling piece of information that came to my attention is a practice—Senator Ferguson interjecting—UI4Ray, Sen RobertSenator ROBERT RAY—I would not laugh too much, Senator Ferguson, because apparently the practice began in South Australia. There is a practice of scanning the receipt forms of major hotel-motel chains through electorate office computers into the hard disc of the computers. I am glad the minister for information technology is here because he will correct me if I get any of the technical aspects wrong.Senator Faulkner interjecting—UI4Ray, Sen RobertSenator ROBERT RAY—Into the hard drive; thank you, Senator Faulkner. The tendency then is, having scanned it into the computer hard drive, one can create their own receipt documents. Apparently this has occurred in at least one South Australian member's office and that technique has been transferred to the office of a federal member of parliament in Queensland. I must say that this puzzled me because I could not imagine what the motive would be.Senator Ferguson interjecting—UI4Ray, Sen RobertSenator ROBERT RAY—Certainly it was not Senator Ferguson who was involved, if you are worried about me correcting the record.I wondered about the motive of this because this could have been a fairly valuable technique, given the new substantiation methods brought in quite properly by Senator Minchin and the Remuneration Tribunal. This technique could have been used to justify fake travel allowance claims, but seeing it has some history, one cannot imagine it had been done for that purpose. The only purpose for which I could imagine it was done is for taxation purposes. In many cases, members of parliament travelling, but not on one of the requirements to attract travel allowance, may in fact put those claims in against their own taxation forms because it is expenditure on parliamentary business, presumably—in this case probably not—and can in fact be taken off the tax.I am going to take the weak option; I am not going to name the two members of parliament concerned, but I do think their colleagues might have a yap about and might drop broad hints that this should be taken off the hard drive, as Senator Faulkner says, and that this particular practice should cease. What will happen in the end is that they will get caught and then all people here—and none of those in the chamber at the moment are involved in this—will get the backwash of this particular scam. It is also a gross misuse of the facilities provided to members of parliament to put them to this particular purpose.My informant has been reliable on everything else so I would not think he is unreliable on this particular matter. The matter was a subject of a complaint to the officials of the Queensland branch of the Liberal Party. The person who took that complaint is now in a new job courtesy of the patronage of the Queensland branch of the Liberal Party and, therefore, would probably no longer be willing to give evidence on this particular matter but certainly raised it with my informant in great detail amongst other complaints, others of which I do not regard as terribly relevant to our proceedings here tonight. It might be a good idea in their party room at some stage for one of the whips to mention this—not to make an accusation, but to remind people that this would not be an appropriate form of action and that they should desist in future.They can remove it from the hard drive, but there will still be evidence that it was there. We have copies of the receipts of the documents generated through this particular methodology. Really it is beyond the pale. Certainly if the Australian Taxation Office catches up with any members of parliament putting in these sorts of false claims—I assume it is for tax purposes, but I cannot be absolutely certain—then basically they could be charged with forging and uttering and a total breach of the tax act with all its knock-on consequences.I do hope that this practice discontinues in future, that the word gets around the building that computers in the electoral office are not meant for this particular ingenious use and that taxpayers as a whole are not defrauded by people using them in such a way.213522:19:002135Ferguson, Sen AlanSenator FERGUSONEP5SALP10—Thank you Senator Robert Ray for ceding me some time to speak because I did not have my name down to speak on the adjournment. I want to respond to some of the things that Senator O'Brien said. Before I do that, I feel I should respond to some of the things that you have said, Senator Ray. It is easy to come into this place and make accusations or suggestions about a wide variety of people without providing any evidence but, if you have that sort of information, I would have thought you should be giving it to the Federal Police, not to the Senate in an adjournment debate.Without naming names, you have talked about South Australian and Queensland Liberal members of parliament and this has cast a shadow over all members. It is all very well to say, `I'm not talking about you, Senator Ferguson,' but I have a number of colleagues in this place. If you have this sort of information, rather than coming into the chamber on the adjournment debate and spreading a smear over all of my colleagues from South Australia, I would have thought you should provide that evidence to the Federal Police. That is the place it should be, rather than here in the Senate. It disturbs me that this chamber is used for this sort of general accusation rather than making specific accusations with some evidence.YW4MACDONALDSenator Ian Macdonald—Didn't you hear the same thing about Labor?EP5Ferguson, Sen AlanSenator FERGUSON—I have heard lots of things about the Labor Party, but I would not raise them in the adjournment debate at 10.20 at night.5F4CALVERTSenator Calvert—You wouldn't have time!EP5Ferguson, Sen AlanSenator FERGUSON—I only have nine or 10 minutes. Senator Ray, thank you for allowing me to do this. I want to respond to a couple of the things that Senator O'Brien said. This has been, in Senator O'Brien's eyes, a long running saga and I would say that I would have to give him 10 out of 10 for persistence and nought out of 10 for substance.In the estimates committee, we spent hours while Senator O'Brien trawled over this particular area of the Department of Workplace Relations and Small Business when he asked questions of Mr Gillespie for a considerable period.It does not matter what answers are actually given in estimates; you can, if you want to, put your own interpretation on those answers which may differ from the interpretation that is put on them by either members on this side or from the intent of the answers that were given by people from the department. Not only did Senator O'Brien have the chance to question the officer concerned at length in estimates; he was also given an additional chance today to re-question the officer whom he requested be brought forward before a supplementary additional estimates hearing because he claimed in a letter to the clerk that he had been mislead. He said that there were only two options open to him: one to recall the estimates committee or to bring the matter to the Privileges Committee. I have seen the workload that Senator Ray has as Chairman of the Privileges Committee and I thought, in order to save him a little bit of time, that the best thing we could do is recall estimates first to give Senator O'Brien a chance to question this officer at length once more.Having sat through that hearing this morning, I did remark to one of my colleagues that it was a bit like going to the dentist expecting to have a filling and finding they were still using the slow moving drill, because the same question was asked over and over again, the same answers were given over and over again. In fact, as far as I am concerned, Mr Gillespie gave his interpretation of what he intended his answers to be. This was not accepted by Senator O'Brien and so he, within his own rights, pursued the matter further.Senator O'Brien used certain terms tonight such as `I find it hard to believe' when referring to certain meetings that took place. He might find it hard to believe but that does not necessarily mean that that the officer had not answered truthfully in estimates and had not given him all the information that he was required to do. He made comments in his speech such as `I assume Mr Feeney and Mr Bills. . . ', naming two people.Then he accused Mr Gillespie of amending advice that was given to the government. Senator O'Brien, you were told in estimates this morning that when it comes to matters of departmental advice to ministers and to the government on strategy that advice is entitled to be treated as confidential. You were told that today. So you used words like `He amended the advice'. That is quite possible.You then said things like, `I have been further advised.' I invited you at the meeting this morning to say where you had received your advice from, because it certainly did not come from the department. You might as well say, Senator O'Brien, `I have listened to rumours'. If you are not prepared to name the advice, say, `I have listened to rumours'. And if you refuse to give any credible sources of your advice, then I think it can justifiably be said that you are putting your own interpretation on answers that were given by departmental officers—not on one occasion but on two and three occasions on which they truthfully answered the questions that were put to them as far as their department was concerned, and that was confirmed by the other officers in the department.You have a right to interpret those answers in any way you see fit, but to suggest that there was a misleading of the Senate only shows that, with time and further experience on estimates committees, you will ask other questions which might be perhaps more probing in getting a detailed response. You will find that departmental officers are giving you the replies that they feel they can officially give, especially when you consider that their role is not only giving answers to you but one of responsibility to the government. You suggested that Mr Gillespie refused to answer certain questions, and he said, `I am not in a position to answer those questions, because they are advice to government.' Tonight is the third or fourth occasion you have repeated some of the transcript of the estimates. Anybody reading the Hansard would know that those same questions were asked at estimates and that they were raised even at the estimates in August last year.You have suggested that there is a lot more to come yet, but as committee chairman I felt obliged to give you every opportunity to ask Mr Gillespie any further questions that you wanted to ask him on any matter. I think that is a process of the Senate that you are entitled to use. I was very happy that we re-called the estimates committee to give you a chance to do that, because I do not honestly believe that every single case where a senator feels that he may have been misled in an answer should automatically go to Privileges Committee. I think it is important that you had the opportunity to once again question Mr Gillespie through the estimates procedure.You had that opportunity. While you may feel from the answers that were given to you that the questions have not been fully answered, or you may feel that you were not told the full truth, that is only an interpretation on your part. I do not share that interpretation, having sat through hours of estimates committees earlier this year, for another hour this morning and through the August estimates last year. I would have thought that if you wanted to pursue this matter the best thing for you to do would be to wait until we have further estimates committees. The decision is entirely up to you, but I would have thought that you have had a greater opportunity than usual as an individual senator to pursue this matter. I can only repeat what I said before: if you did not get the answers you wanted, that is not the fault of the officer, nor is it the fault of the department; it is possibly the fault of your own perception of what you had hoped to receive in the way of answers that did not come.22:28:002137Senate adjourned at 10.28 p.m.Documents21372137The following documents were tabled by the Clerk:Income Tax Assessment Act 1936 —RHQ Company Determinations Nos 1-4 of 1998.Public Service Act— Locally Engaged Staff Determinations 1998/12 and 1998/13. Public Service Determinations 1998/7-1998/9.Answers to Questions on Notice2138The following answers to questions were circulated:2138(Question No. 1078)10782138Allison, Sen LynSenator Allison1M6VICAD00 asked the Minister for the Environment, upon notice, on 5 March 1998:(1) Will a representative from Environment Australia be attending the Intercessional Meeting of the Technical Consultation on Monitoring Control and Surveillance Issues, in Suva, from 10-13 March 1998, as part of the development of a regional agreement for highly migratory fish stocks of the central and western Pacific; if not, why not.(2) Will a representative from Environment Australia attend all subsequent technical and negotiating sessions, as a member of an official delegation, until the agreement has been finalised; if not, why not.(3) Can an outline be provided of the efforts which will be made to ensure that the agreement fully recognises the need for ecologically sustainable fisheries management that takes into account the issue of ecologically related species (by catch) within the region in question.(4) What efforts will be made to provide technical and financial help to small South Pacific states to effectively implement this Convention within the region once the agreement has been finalised.2138Hill, Sen RobertSenator HillBH4SALPEnvironment10—The answer to the honourable senator's question is as follows:(1) A representative from Environment Australia did not attend the Intercessional Meeting of the Technical Consultation on Monitoring, Control and Surveillance Issues, held in Suva, from 10-13 March 1998.Fisheries monitoring, control and surveillance are standard fisheries management activities and are matters within the responsibilities of my colleague the Minister for Resources and Energy, Senator the Honourable Warwick Parer. These matters are more appropriately dealt with by members of Senator Parer's portfolio.(2) I would not expect Environment Australia to attend all of the technical and negotiating sessions until the agreement has been finalised. representation at all meetings would have significant resource implications for my Department, and some of these meetings deal with issues outside the responsibilities of my Department. However, I would expect my Department to take its place in the delegation for key negotiating sessions, and relevant technical meetings.I am confident that Environment Australia's interests can be fully represented by the Department of Foreign Affairs and Trade if an Environment Australia representative is unable to attend any meeting. Environment Australia will play an active role in this issue, particularly with respect to matters relating to sustainable harvesting and impacts on ecologically related species. My Department will be involved in developing Australia's policy approach on this issue and in drafting the negotiating brief for Australia's official delegations.(3) Environment Australia's active participation in all future developments relating to this issue will ensure that the final agreement fully recognises the need for ecologically sustainable fisheries management.As I mentioned in answer to the previous question, Environment Australia will:- be actively involved in the development of all policy relating to this issue- be actively involved in the drafting of negotiating briefs for Australian delegations- attend relevant technical meetings and negotiating sessions where resources allow.If resources do not allow Environment Australia to attend these meetings, it will ensure that its interests are fully represented by the Department of Foreign Affairs and Trade.(4) The information sought by the honourable senator does not fall within my Portfolio responsibilities. I suggest that she direct this question to my colleague the Minister for Foreign Affairs and Trade, the Honourable Alexander Downer MP, who has overall responsibility for AusAID.