1998-04-073816SENATE213901998-04-07The PRESIDENT(Senator the Hon. Margaret Reid) took the chair at noon, and read prayers.Committees2139213910000PRESIDENTThe PRESIDENT—I have received letters from party leaders seeking variations to the membership of committees.Motion (by Senator Minchin)—by leave—agreed to:That senators be discharged and appointed to committees as follows:Economics Legislation Committee— Participating member: Senator Crane.Employment, Education and Training References Committee— Participating member: Senator Forshaw.Environment, Recreation, Communications and the Arts Legislation Committee— Participating member for matters relating to communications and the arts: Senator LightfootForeign Affairs, Defence and Trade References Committee— Participating member: Senator Forshaw.Rural and Regional Affairs and Transport Legislation Committee— Substitute member: Senator Heffernan to replace Senator McGauran for 7 April to 8 April 1998.Rural and Regional Affairs and Transport References Committee— Appointed: Senator Murphy.21392139Motion (by Senator Minchin)—by leave—agreed to:That the Rural and Regional Affairs and Transport Legislation Committee be authorised to hold a meeting during the sitting of the Senate today from 1.15 p.m. till 2.00 p.m. to finalise a report on a bill. Bills2139r4552139Consideration resumed from 6 April.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Chapman)—The committee is considering Native Title Amendment Bill 1997 [No. 2] and government amendments Nos 3 to 10 relating to group 2, confirmation, moved by the Special Minister of State, Senator Minchin.12:02:002139Bolkus, Sen NickSenator BOLKUSXE4SAALP00—Late last night, Senator Margetts asked me to explain the difference between the opposition amendments this time and the opposition amendment last time in respect of government amendment No. 3.Very simply, the distinction is that last time the range of Crown to Crown grants which was involved was a bit broader than it is now. In essence, what is happening under this amendment is, once again, that the extinguishment principle will not be applied; it is a suspension principle. But, in the ambit of titles that are to be protected from claims, that area is reduced so that `Aboriginal properties', for instance, is widened in its application. Basically, we will have a wider range of Aboriginal holdings that can be claimable and, as a consequence, it will be a more beneficial measure for indigenous Australians.As I say, the core principle here has always been, firstly, non-extinguishment and, secondly, exclude Crown to Crown. That will still be maintained, but greater protection, greater capacity for title claims in respect of, for instance, Aboriginal health centres, is now available.12:04:002139Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Through you, Mr Temporary Chairman, perhaps I could ask Senator Bolkus: a wider range than what—a wider range than the Greens' amendment 12A, or a wider range than what the government proposes?12:04:002139Bolkus, Sen NickSenator BOLKUSXE4SAALP00—Wider than your amendment, which was the amendment that was put by the opposition and Greens last time. So it is a slightly more beneficial amendment for indigenous Australians than the amendment that we all moved together last time, which is your amendment this time.12:04:002140Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I want to speak at this point in a general sense to the whole issue of confirmation. The confirmation of extinguishment—or, perhaps, in the words of the Deputy Prime Minister, `bucketloads of extinguishment'—is what we are dealing with this afternoon.The government's proposed division 2B, as was stated in December last year, pre-empts the development of the common law and is unnecessary. It also seeks to go beyond the Wik decision, something which the government continually says it respects. By stating that native title rights are inconsistent with pastoralists' rights is not to give the full story. Legal rights conflict with other legal rights every day of the week.At this point I want to emphasise the term `rights'. This is the much lauded National Party's bucketloads of extinguishment. It is Aboriginal and Torres Strait Islander dispossession, coalition style. Throughout the government's rhetoric in this debate on the all important national issue of Wik, the chimes of certainty have rung out falsely as a kind of spin doctor's mantra from the government. We now know what sort of certainty the government is offering. It is certainty that indigenous people in this land will have their rights obliterated by a big stick approach from a parliament that disenfranchises them and a government that does not care about their station in Australian society.Just last week as we commenced debate on the application of the provisions of the Racial Discrimination Act, and I commented on the Prime Minister's offer to fund litigation over the legislation which we are now debating, Senator Herron said in this chamber that `We', meaning the government, `would have to pay for it'. We simply do not believe that.We will be moving amendments that will oppose the legislative bucketloads of extinguishment—I guess, to the great disappointment of the National Party, and especially the National Party in my home state of Queensland, because the list of tenures and uses that this government has listed in schedule 4, under the state of Queensland in particular, is a very long list indeed. Rather than Tim Fischer's `bucketloads of extinguishment', we should be referring to it as a `coal truck load of extinguishment'—a very big bucket indeed.Having referred to Queensland, though, it is true of every state listed in this schedule. There is a lot in this bill which we believe is simply a sop to the National Party. We believe that these extinguishment provisions are the worst of the lot. This is the bit that they cannot wait to wave around at public meetings in town halls throughout the bush and say, `We've looked after you.'The government's proposed division 2B seriously pre-empts the development of the common law. It also goes way beyond Wik by actually stating that any native title rights that are inconsistent with pastoralists' rights permanently extinguish native title. This is way beyond Wik and cannot in any way encourage the correct way forward—that is, through coexistence and in a spirit of cooperation.The Wik decision is clear: where the rights of native title holders are in conflict with pastoralists' rights, the rights of pastoralists prevail. So this proposed division 2B is also unnecessary.There is also the question of how the list in schedule 4 was developed. I presume the answer is: behind closed doors and with a lot of input from the National Party and state premiers. I am advised that representatives of the indigenous people were handed this division and the accompanying schedule and given two hours to peruse it, prior to being asked for their view on it—two hours to consider such a detailed schedule and this horrendous division in the bill. I can only begin to imagine the horror which indigenous representatives felt when they saw this part of the bill and the accompanying schedule.Senator Minchin said, last time we were debating the bill, that schedule 4 does not include one pastoral lease and was implying that, somehow, because of this, the schedule was therefore okay and should be supported. I do not believe that it is okay, because other parts of division 2B achieve the same result on pastoral leases as is the effect on those tenures listed in schedule 4. I am referring here to section 23G in particular.I want to refer to another part of what Senator Minchin said last time, on 28 November last year. He referred to pastoral leases in the western division of New South Wales and why the government knocked back a request to include them in schedule 4. He said, `That is entirely a matter for the courts.' I cannot help thinking that we have a terrible inconsistency here from the government, and this is precisely the problem with this part of the bill—those things which are in are against those things which are out, or a matter for the courts, as the minister described last time. It is the result of a very subjective and arbitrary process.The Democrats maintain that extinguishment of native title from activities should be limited to the extinguishment that would occur under the common law. There is no need for the amount of extinguishment to be greater than is necessary to give effect to the act that is required to be carried out. Already, there is an argument that indigenous people are left with the crumbs after everybody else has had a go, even without this part of the bill.If ever there was an example of why this bill needs to be subject to the provisions of the Racial Discrimination Act, these extinguishment provisions of the bill provide that example. This is a classic case of taking away rights based on race. I believe it is also fair to ask whether this division could also be a breach of the International Convention on the Elimination of all Forms of Racial Discrimination.The development of this division and the schedule has also been an unfair process, and we will be moving to have the whole of division 2B and the accompanying schedule struck out of the bill. In the interests, however, of not perpetrating any further racial discrimination, I urge other senators to do likewise.12:12:002141Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Last night I asked a question of Senator Bolkus regarding opposition amendment N3 and its relationship to Demo crats- Greens amendment 12A, and I am grateful for his reply earlier today. Before I make some general comments about this whole issue of Crown to Crown grants, I note that there is some concern that the last clause of this amendment, which allows for Crown to Crown grants which are put to residential, agricultural or commercial uses to become previous exclusive possession acts, is a little too broad. I ask whether it would be possible to add the following words at the end of the final clause of N3:. . . , which would otherwise be previous exclusive possession acts.This would ensure that residential, agricultural or commercial uses which were not previous exclusive possession acts did not extinguish native title. I realise that we are all under a lot of pressure here, but perhaps I could leave that and Senator Bolkus can get back to me.The government's proposed confirmation of extinguishment provisions will extinguish native title wherever there has been a grant of previous exclusive possession act in the past. This would include grants from the Crown to itself or to a Crown-owned statutory authority. Proposed section 23B of the bill confirms that the grant of various estates, including of freehold, to any private person should extinguish native title. While the grant of a freehold estate to a private person extinguishes native title in accordance with various decisions of the High Court, it is unjust and contrary to the common law that extinguishment should apply to all Crown to Crown grants.What the Senate did last year was merely preserve the 1993 provision that a grant made by the Crown in one capacity to the Crown in another capacity—for example, a transfer of Crown land from one state government department to another—does not extinguish native title. It was considered unfair in 1993 for native title rights to be extinguished forever by an administrative procedure. The current Senate reaffirmed this principle in 1997. Most fair-minded Australians would agree that the technical difference between vacant Crown land and Crown land which is vacant should not be one which destroys native title property rights. In addition, the potential for such a device to be used capriciously by state governments was not lost on the Senate.In Mabo No. 2, Justice Brennan—and this is interesting because Senator Minchin has often quoted Justice Brennan in the last day or so—expressly left open the question of whether the creation of certain Crown interests in land, such as a national park, extinguish native title. In view of the principles adopted by the court in Wik, it is likely that Crown grants to itself or to a corporation wholly owned by it will not necessarily extinguish native title. The government's confirmation of extinguishment forecloses this question against indigenous interests without any definitive ruling in support.In some states and territories, most particularly the Northern Territory, grants of freehold to a statutory corporation owned by the Crown have been used as a specific device to prevent claims under the Aboriginal Land Rights (Northern Territory) Act. This bill would compound that injustice. There is no principle whereby a national park, for instance, created by a freehold grant to the park service should extinguish native title where a permanent dedication of that land does not. The proposed amendment does not prevent interest granted to third parties within those areas from extinguishing native title if there are previously exclusive provision acts.Proposed section 23B(9) of the bill exempts Aboriginal owned land from the extinguishing effect of the confirmation provisions. Similarly, section 23(2) of the Native Title Act, which the government has not amended, exempts validated freehold Crown to Crown grants which were past acts from any extinguishing effects. Aboriginal land is also exempted. This principle should apply to all such acts.We know that there are many ways by which the government has allowed extinguishment to take place. We know that the actual acts and the use of this land are being used for extinguishment. We are saying that it is not unreasonable for the Commonwealth in this bill to make sure that the sheer act of granting or vesting or Crown to Crown grants per se occurs without any effort being made to see whether they do or should permanently extinguish native title. We want to see justice better served. I could not say that this bill in any way, shape or form serves justice. Justice would be better served if there were an effort to find out whether the use of land does extinguish native title. I plead with the Senate to support the amendment as it is currently written. I fully back up what Senator Woodley has said in opposition to division 2B.12:19:002142Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—The Senate did pass the confirmation provisions the last time for very good reasons. They are designed to produce the degree of certainty about native title that we think is essential. What they do is have the effect of confirming the common law—that is, where a grant of exclusive procession has been made, native title is extinguished. It is absolutely and fundamentally clear that that is the common law. That affects about 21 per cent of Australia thereby, ensuring that the remaining 79 per cent of Australia is open to native title claim.These are essential provisions. I would hope that the Senate would reaffirm its support for them. They do ensure that, instead of the extraordinary uncertainty and legal imbroglio that would flow from every single potential exclusive possession lease being challenged, we concentrate the legal resources and all our energies on determining who holds what native title and where for the 79 per cent of Australia which is clearly open to native title claim rather than incorporating into that the remaining 21 per cent where, clearly, there have been grants of exclusive possession. It is not an unreasonable proposition. It does confirm the common law.I make it clear that these confirmation provisions do not include national parks. Several speakers, from time to time, refer to the question of national parks. National parks are specifically excluded from the confirmation provisions. We have gone to elaborate lengths to ensure that, where native title is claimed on national parks, it can be done so and that an appropriate regime is available to incorporate and allow for claims involving national parks. There is no confirmation of extinguishment in national parks.Where a grant of exclusive possession is by the Crown to another arm of the Crown or to individuals, then extinguishment is confirmed. We will come to the opposition amendments in detail. It is patently nonsense to try to draw a distinction between the effect of a grant based on the recipient of the grant. That is a legal nonsense and one that is completely unworkable. If a grant of exclusive possession is made, it is made and it has the effect of extinguishing native title. To try to draw distinctions on who is the recipient of the grant becomes a complete nonsense.12:21:002143Bolkus, Sen NickSenator BOLKUSXE4SAALP00—Senator Margetts raised a question about whether we would see fit to add some words to my amendment N3. The words suggested are:. . . , which would otherwise be previous exclusive possession acts.I have had a look at that. There is some inconsistency in putting in those words given that the first part of that clause reads, `an act is not a previous exclusive possession act'. There is a contradiction.What I suggest is that the words `which would otherwise extinguish native title' be the appropriate words to add at the end of proposed new subsection (9A). So the last sentence would then read:unless, or until, the land is put to residential, agricultural or commercial uses, which would otherwise extinguish native title.It picks up the point and makes it very clear what the objective of the amendment is. I hope those alternative words are acceptable to those who are keen enough to support this amendment.12:23:002143Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I am grateful for Senator Bolkus's consideration of this. Yes, those words will be acceptable to us. It does help clarify things.I noticed that Senator Minchin twitched when I mentioned national parks in my speech. I had a fair idea he was going to mention national parks again when he stood up, and he did. It is pedantic really, and it is pedantic because acts that occur in national parks will have the ability to extinguish native title. So the national park itself may not extinguish native title but it is what occurs in the national parks. That, in reality, is what affects people—basically some of the changes that occur within the national parks. A whole range of issues could take place. Senator Minchin knows that as well.12:24:002143Harradine, Sen BrianSenator HARRADINE6H4TASIND00—We are dealing with the government amendments at this point, are we?10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Chapman)—That is correct.6H4Harradine, Sen BrianSenator HARRADINE—Why are we amending and accepting additions to N3, which is an opposition amendment?10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Senator Harradine, we are not yet. I know senators have been referring to those matters in their speeches but in formal terms we are dealing only with the government amendments.Amendments agreed to.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—We now move to opposition amendments N3 to N5 on sheet 917 and RN2 and N43 on sheet 946, which add subsections 23B(9A) to (9C) and (11) and (12).12:25:002143Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I move:(N3) Schedule 1, item 9, page 14 (after line 28), after subsection (9), insert: (9A) An act is not a previous exclusive possession act if it is: (a) the grant of an interest in land from the Crown, or a statutory authority, to the Crown in any capacity, or a statutory authority, or (b) the creation or vesting of an interest in land in the Crown in any capacity, or a statutory authority; unless, or until, the land is put to residential, agricultural or commercial uses.(N4) Schedule 1, item 9, page 14 (after line 28), after proposed subsection (9A), insert: (9B) An act is not a previous exclusive possession act if it is the granting or vesting of a leasehold interest which covers or covered an area in excess of 25,000 hectares. (N5) Schedule 1, item 9, page 14 (after line 28), after proposed subsection (9B), insert: (9C) An act is not a previous exclusive possession act if it is an act done pursuant to a law of the Commonwealth, a State or Territory which provides that it does not extinguish native title rights or interests.(RN2) Schedule 1, item 9, page 14 (after line 31), at the end of section 23B, add: (11) Notwithstanding anything else in this Act, native title rights and interests, extinguishment of which is confirmed by this Division, may, if not otherwise extinguished, lost or abandoned, revive upon the cessation of the interest (including any valid renewal or extension of the interest) created by the previous exclusive possession act.(N43) Schedule 1, item 9, page 14 (after line 31), at the end of section 23B, add: (12) The non-extinguishment principle applies to any act excluded by this section from being a previous exclusive possession act.Opposition amendment RN2 has the affect of leaving it to the common law and the courts—the appropriate forums we would maintain—to decide whether native title can revive on land following expiry of a Crown grant. We do so by inserting proposed new subsection (11) at the end of section 23B of the bill. We maintain that this is the responsible way for the parliament to deal with the question which was clearly left open by the High Court majority in Wik. Our view that it was left open is reinforced by the government's own advice on that point, as provided by the Australian Government Solicitor.It is important we do this in terms of reflecting the common law. It is also important that we do not lumber Australian taxpayers with an unnecessary compensation bill—a bill that they would be lumbered with if the government's proposal was to proceed through the Senate unamended. It would also avoid the kinds of constitutional doubts over just terms which were expressed across the board in the Senate legal and constitutional committee hearings dealing with this matter.The amendment will also avoid inconsistency within the act by bringing those provisions into line with the government's own sections 47A and 48B, sections which relate to Aboriginal reserves on vacant Crown land where past acts of extinguishment will be disregarded in recognition that native title can survive so-called technical extinguishment where traditional connection has been maintained. That is RN2.Amendment N3 is a modified version of the amendment which passed the Senate last year, which again corrects the overreach in the definition of `previous exclusive possession act'. Our amendment excludes grants of interest between Crown to Crown, different arms of government, and it applies the same exclusion in the creating or vesting of an interest in land in the same entities. The proposed new subsection (9A) of 23B also contains an appropriate protection where the land is subsequently put to residential, agricultural or commercial uses—a point we have just been discussing with Senator Margetts. This amendment also leaves the common law to determine what effect on native title these transfers between different arms of the Crown have.Amendment N4 once again pares back the government's extremism in section 23B in defining the acts which it says extinguish native title. There has been an enormous debate about the government's overreach here. Proposed new subsection (9B) excludes from the definition of `previous exclusive possession act' a category of act which in our view cannot be included in any fair or reasonable basis. It excludes leases which exceed the 25,000 hectare limit.We have come up with that figure because the High Court in Wik made it very clear that the size of leases in question was a very relevant consideration in deciding whether a particular grant extinguished native title. The government picked up that point in the High Court decision when it laid down its list of 10 relevant factors in its explanatory memorandum which need to be taken into account in assessing whether a particular lease extinguishes native title.As I said earlier, we have problems with the way the government has approached this, but size is relevant—size was relevant to the High Court. What we say is not that everyone who has a lease of over 25,000 hectares is excluded from coming within the definition of exclusive possession, but we maintain that it is going too far for the government to allow, in a broad sweep, people to have exclusive possession regardless of the size of the lease when it is quite clear that every lease, particularly of large dimensions, would not necessarily provide exclusive possession and accordingly suspend or extinguish native title.We have taken the government and the High Court at their word. Twenty-five thousand hectares is a very large area in anyone's language. It is impossible to see how anyone could argue that every lease of that dimension necessarily requires exclusive possession in order to give effect to the grant. Excluding such grants, as I said, does not mean that individual leaseholders of such properties are preventing someone from proving in court their right to exclusive possession. It simply means that the government is prevented from sweeping every one of these large grants indiscriminately into the extinguishing category.Amendment N5 is another amendment to wind back the overreach of the government's approach. It excludes from the definition of `previous exclusive possession act' any act done pursuant to law which expressly states that it does not extinguish native title. It is a case of commonsense here, I would maintain. The parliament itself has expressly said that an act does not extinguish. It is surely ridiculous if an act itself nonetheless sweeps into the extinguishment category such acts. They are the opposition amendments in respect of this point. I do hope they get majority support of the committee.10000CHAIRMANThe CHAIRMAN—Senator Bolkus, I understand that N3 is in an amended form. Is that correct?XE4Bolkus, Sen NickSenator BOLKUS—N3 is to be moved in amended form and the amendment is to add the words, `Which would otherwise extinguish native title,' after the words `commercial uses' in the last line. If we are to be pedantic, then I would also suggest that we do away with the full stop after `uses' and replace it with a comma if you so desire.12:30:002145Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Madam Chair, the Greens (WA) will be supporting the opposition's amendments, and I am grateful to Senator Bolkus for making that small amendment of clarification. As can be seen from the sheet, our preferred option is to clinically remove the bucketloads of extinguishment as they are projected in this evil part of the bill, and we will still be calling for that to happen. Although we recognise that the opposition's amendments are an improvement on the government's position, the government's amendments in fact marginally improved a dreadful provision. Basically, as we go along, we will be attempting to excise those areas of extinguishment in this section.12:31:002145Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—Madam Chair, the Democrats will be supporting the government's amendments at this stage, but we will, as Senator Margetts has expressed, seek to oppose the whole of division 2B as being quite abhorrent.12:32:002145Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—Madam Chair, I indicate that the government will accept opposition amendment N5 and, on the basis of what I understand will be a change to N10, which has been communicated to us, we would be prepared to accept that one. But we oppose the other amendments for reasons which were debated at length during the previous debate in December.In terms of N2, it remains the government's firm view, now confirmed by the Federal Court in Larrakia, that extinguishment is permanent. Justice O'Loughlin examined this question in detail in Larrakia and confirmed what Chief Justice Brennan and Justices McHugh and Dawson said in Wik that native title once extinguished is extinguished permanently, so N2 is unacceptable.As I said before, in relation to N3, we do not see any basis in law or practice or reality in trying to draw a distinction between exclusive possession tenures as to who holds them. We regard that as a legal nonsense and, potentially, a legal nightmare. The sorts of tenures that are then opened up for potential native title claims are many and widespread. Obviously, where there were claims against things like public housing, hospitals, nursing homes, government businesses, they would make a complete farce of the process.We also oppose this proposition that there be some out-of-the-air arbitrary size limit on leases which are on the schedule. The only leases that fall into this category are a certain number of grazing homestead perpetual leases in Queensland—some 62, I am advised. Yes, it is true that the High Court in its 4-3 decision on Wik, in trying to determine whether a lease could be said to necessarily extinguish native title, took account of a whole range of factors, of which size was one, in terms of looking at the legislation and the leases granted under it. But the High Court also had regard for the questions of whether there were area restrictions on pastoral leases, whether there was a mandatory residence requirement, whether fencing was necessary, whether the lease was granted for a person's own exclusive use or benefit, and whether other parties had rights such as depasturing.According to all those criteria, it was quite clear to the government, based on independent legal advice, that grazing homestead perpetual leases in Queensland—not pastoral leases but these GHPLs, as they are called—were grants of exclusive possession. Taking account of all those criteria, it is clear that, according to the Wik test, they are grants of exclusive possession. That still leaves, I think, over 50 per cent of Queensland claimable, even when these are taken out. But to now just say, `Oh, well, we think 25,000 is enough for these, and so every lease that is bigger than that we are going to arbitrarily declare that it is not necessarily a grant of exclusive possession,' is an outrage, and it is certainly unacceptable to us.It means that someone with 24,999 hectares has their clear exclusive possession confirmed, but someone with 25,000 or 25,001 hectares is then open to native title claim and the extraordinary expense and concern that obviously would arise from what would flow. It is contrary to what is clear on the face of it—and on the best legal advice available to us—that they are grants of exclusive possession. So this parliament is arbitrarily saying, `Sorry, it's no longer in our view necessarily a grant of exclusive possession, and we are going to subject you to all that flows from such an arbitrary determination.' That really is completely unacceptable to us.I said we would accept N5. We do not believe that N6 is a necessary amendment. We think it can have consequences for Aboriginal people holding freehold land that can then be opened up to native title claim, which we think will cause much more difficulty than is desirable. I think 47A and 47B are important initiatives by the government to recognise the capacity for Aboriginal people in occupation of land to claim native title, but we do not believe that N6 is a sensible amendment. We think N7 and N8 are quite unnecessary. As to N9, the removal of the regulation making power, we cannot accept that. We do not think that is a sensible amendment.12:37:002146Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I would like an answer from the minister about what the government is intending to do to stop the fiddling of the books between state bodies and Commonwealth and state bodies to effectively remove the rights of indigenous Australians through Crown to Crown grants.12:37:002146Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—As I am reminded, the confirmation provisions apply to all grants made prior to 23 December. It is a declaration of the legal status of grants made under the relevant state legislation prior to 23 December 1996. It is just a declaration that those grants having been made, those grants having clearly filled the criteria determined by the High Court in Wik as to what or was not a grant of exclusive possession, they are deemed to be grants of exclusive possession based on a confirmation of the common law.What is essential in this whole area is for the parliament to provide the requisite certainty which has never been provided since the Mabo decision by the Native Title Act as to where native title may or may not have survived. It is quite clear at common law that where there is a grant of exclusive possession native title is extinguished. There is no basis in any of the judgments to suggest that because the exclusive possession is held by an agent of the Crown native title is not extinguished thereby. So we are confirming that all grants prior to this period do confirm extinguishment.Any future grants have to follow the processes of the Native Title Act as amended. To the extent that any future grant does involve a grant of exclusive possession, then you either have to get the agreement of the native title holder or follow the non-discriminatory compulsory acquisition processes laid down in the act. This is a confirmation of the status of past grants. It does not open up opportunities for fiddling, as you call it, because any future activity must follow all the requirements of the Native Title Act and cannot be done validly unless it does follow those provisions.12:39:002147Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I am just wondering if the minister is aware that in 1993 all parties, including his own, excluded Crown to Crown grants from the extinguishment provision.12:39:002147Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—My recollection is that we voted against the whole of the Native Title Act. Our position was to oppose it. We have been criticised for not engaging more actively in the debate and seeking to amend the Native Title Act, but we opposed the whole act. We did not think the Native Title Act would work, and I have to say that I think we have been proved right.12:40:002147Boswell, Sen RonaldSenator BOSWELLYE4QLDNP10—I think I have to come in and do a bit of pitch hitting here while Senator Harradine seeks some advice. Senator Minchin, I am sorry I did not tell you that I was going to speak but I will only take a very short time.I am most concerned about opposition amendments N4 and N43. We do have an agreement on a schedule of leases. There are a small number of leases in Queensland that are over 25,000 hectares. I think one is near Herbert, one is in the Murweh shire and one is in Charters Towers. If the opposition take these off the schedule and succeed with amendment No. 43 applying non-extinguishment to anything not on the schedule, we could have these freehold leases under the non-extinguishment principle.We have been through this debate. It is very incorrect to put an arbitrary figure on a freehold lease or on a perpetual lease. The people who have 25,000 acres just fall under, and someone who has 25,100 acres is penalised. The matter of principle has been fought out and all those leases were put on a schedule. You cannot then extinguish a lease because of the size. That is just a nonsense. Senator Bolkus, it is a matter of principle, not the size of the lease. I ask you to think very seriously about N4 and N43.12:42:002147Bolkus, Sen NickSenator BOLKUSXE4SAALP00—Can I suggest that when these opposition amendments are put that they are put separately rather than jointly?10000CHAIRMANThe CHAIRMAN—You want to vote on each individual one or in groups?XE4Bolkus, Sen NickSenator BOLKUS—Each individual one.12:42:002147Harradine, Sen BrianSenator HARRADINE6H4TASIND00—With regard to RN2 and N43 on sheet 946, RN2 is very important, I think. I am supporting it. I understand that Senator Minchin says that O'Loughlin has done his task and certain decisions have been made, but who is to say what the court will do at a later time? Here we are seemingly attempting to pre-empt the common law. I think there is need to make sure the common law prevails. I started off in my speech on the second reading by saying quite frankly that I believed the Senate should not diminish in any way the common law rights of native title holders. That is in regard to RN2.With respect to N43, the next provision on sheet 946, I am opposing that for the same philosophical reason that I am supporting amendment RN2 by the opposition. In regard to the amended N3, I suggest to the committee on the run that this amendment is really making clear the intention, that is:An act is not a previous exclusive possession act if it is—Then (a) and (b) follow. Then it says:. . . unless, or until, the land is put to residential, agricultural or commercial uses.That is precisely in accordance with existing law. Senator Margetts is proposing the adding of the words, `which would otherwise be previous exclusive possession acts'.DX5MARGETTSSenator Margetts—That has been changed since then.6H4Harradine, Sen BrianSenator HARRADINE—Has it? Could I suggest generally around the chamber that perhaps we could change that to, `which would thereby otherwise extinguish native title rights and interests'.DX5MARGETTSSenator Margetts—Those are virtually the words that Senator Bolkus has now agreed to put in.6H4Harradine, Sen BrianSenator HARRADINE—I hesitate to say that two great minds think alike.XE4BOLKUSSenator Bolkus—They will expect a deal, Brian.6H4Harradine, Sen BrianSenator HARRADINE—I ask: what are the actual additional words?12:46:002148Bolkus, Sen NickSenator BOLKUSXE4SAALP00—They are not exactly the same, so the conspiratorial theorists can rest easy at the moment. I suggested that we add the words, `which would otherwise extinguish native title'. You are saying, `which would thereby otherwise extinguish native title rights and interests'. In essence I think it has the same impact. I am not fussed if you want to proceed with yours as opposed to mine—I think they mean the same thing.12:47:002148Harradine, Sen BrianSenator HARRADINE6H4TASIND00—Thanks for clarifying that. I shall vote for N3. I do not propose to vote for N4. Senator Minchin explained that adequately. The government has supported N5. Amendments N6, N7 and N8 are the law in any case. Whether or not they are agreed to does not really matter, but I am supporting those amendments. We come then to N10. The government I think was unanimous on that particular matter. That just about covers the lot, does it not?12:47:002148Bolkus, Sen NickSenator BOLKUSXE4SAALP00—There is one clarification to N10 which has been brought to our attention by the government. Possibly because of typo graphical errors or something greater than that, the words `but not' should proceed the rest of that clause that I am seeking to insert into the bill. So N10 would read `or (c) but not any interest otherwise excluded from the definition of a previous exclusive possession act'. I think we got lost without the negative there. It is something that we should have picked up. We thank the government for bringing it to our attention.10000CHAIRMANThe CHAIRMAN—Senator Bolkus, I understand that you have moved N3 to N5, RN2 and N43. You have not moved N6, N7, N8, N9 and N10 as amended—is that correct?XE4Bolkus, Sen NickSenator BOLKUS—I have not because I presumed they would be coming up later in the debate. I am quite happy to do that.10000CHAIRMANThe CHAIRMAN—Do you want to move them? The debate has ranged over them all.XE4Bolkus, Sen NickSenator BOLKUS—I move:(N6) Schedule 1, item 12A, page 123 (line 17), after "freehold estate", insert "for the provision of services (such as health and welfare services)".(N7) Schedule 1, item 12A, page 125 (line 14), after "lease is", insert "bona fide".(N8) Schedule 1, item 12A, page 125 (line 14), after "term is", insert "bona fide".(N9) Schedule 1, item 49, page 140 (lines 25 to 27), omit paragraph (1)(b).(N10) Schedule 1, item 49, page 140 (line 27), at the end of subsection (1), add: ; or (c) but not any interest otherwise excluded from the definition of a previous exclusive possession act.I wish to have the amendments all treated separately. I make it clear that I am moving RN2 as opposed to N2.10000CHAIRMANThe CHAIRMAN—Yes, and N10 as amended and N3 as amended.NaN:00:002148Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Madam Chair, I think the suggestion by Senator Harradine, although very similar to Senator Bolkus's suggestion, was actually very helpful. `Native title rights and interests' is probably a little bit clearer. If Senator Bolkus is happy with that, then the inclusion of the words `rights and interests' would be helpful.12:49:002149Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I am happy with that. I seek leave to amend my amendment No. 3.Leave granted.XE4Bolkus, Sen NickSenator BOLKUS—My amendment will now read:(N3) Schedule 1, item 9, page 14 (after line 28), after subsection (9), insert: (9A) An act is not a previous exclusive possession act if it is: (a) the grant of an interest in land from the Crown, or a statutory authority, to the Crown in any capacity, or a statutory authority, or (b) the creation or vesting of an interest in land in the Crown in any capacity, or a statutory authority; unless, or until, the land is put to residential, agricultural or commercial uses, which would thereby otherwise extinguish native title rights and interests.Amendment N3 agreed to.Amendment N4 not agreed to.Amendment N5 agreed to.Amendment RN2 agreed to.Amendment N43 not agreed to.Amendment N6 agreed to.Amendment N7 agreed to.Amendment N8 agreed to.Amendment N9 not agreed to.Amendment N10 agreed to.10000CHAIRMANThe CHAIRMAN—That completes the opposition amendments. We now move to the Democrats-Greens (WA) amendments. Is there any comment?12:51:002149Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—No. Our amendment No. 12 opposes schedule 1, item 9, division 2B standing as printed.10000CHAIRMANThe CHAIRMAN—The question is that schedule 1, item 45, division 2B, as amended, be agreed to. Question put:12:56:00The committee divided. (The Chairman—Senator S. M. West)35Abetz, E. Alston, R. K. R.Boswell, R. L. D. Brownhill, D. G. C.Calvert, P. H. Chapman, H. G. P.Colston, M. A. Coonan, H.Crane, W. Eggleston, A.Ellison, C. Ferguson, A. B.Ferris, J. Gibson, B. F.Harradine, B. Heffernan, W. *Herron, J. Hill, R. M.Kemp, R. Lightfoot, P. R.Macdonald, I. Macdonald, S.MacGibbon, D. J. Minchin, N. H.Newman, J. M. 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.33Allison, L. Bartlett, A. J. J.Bishop, M. Bolkus, N.Bourne, V. Brown, B.Campbell, G. Carr, K.Collins, J. M. A. Conroy, S. *Cook, P. F. S. Crowley, R. A.Denman, K. J. Evans, C. V.Faulkner, J. P. Forshaw, M. G.Hogg, J. Lees, M. H.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.Knowles, S. C. Cooney, B.McGauran, J. J. J. Gibbs, B.O'Chee, W. G. Neal, B. J.* denotes teller(Senator Ian Campbell did not vote, to compensate for the vacancy caused by the resignation of Senator Bob Collins.)Question so resolved in the affirmative.12:59:002149Harradine, Sen BrianSenator HARRADINE6H4TASIND00—For the information of the committee, now that RN2 has been adopted, there is no need for me to proceed with my amendments Nos 2, 3 and 4.13:00:002150Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—The debate and the vote that just took place unfortunately confirmed that there will be bucketloads of extinguishment—a very important issue in this debate—and we still have some elements of that to deal with. I will not be moving amendment No. 12A because, as has been explained, it covered much of the ground of opposition amendment No. N3 and, with the amendments that were made on the floor, it satisfied our requirements. I will not be moving that.10000CHAIRMANThe CHAIRMAN—Do you wish to do anything further, Senator Margetts?DX5Margetts, Sen DeeSenator MARGETTS—Our amendments Nos 178, 255, 182, 183 and 183A are, I believe, consequential. We have clearly seen what the government's position is in relation to removing its unfair bucketloads of extinguishment, therefore the next amendment that I seek to move is Greens-Democrat amendment No. 327.10000CHAIRMANThe CHAIRMAN—You do not move it; you speak in opposition to schedule 4.DX5Margetts, Sen DeeSenator MARGETTS—Thank you. Schedule 4 is the now quite infamous further bucketloads of extinguishment which included the thousands of tenures which have not been established by the courts as extinguishing native title, which the government has moved to foreclose. It was remembered by parliamentarians because it included such things as the Royal Antediluvian Order of Buffaloes and so on, and there was no reason why by the stroke of a pen that kind of measure should have been taken by the government. It is funny that Senator Minchin was talking about our being arbitrary, when for many native title holders and potential native title claimants this is about as arbitrary as you can get. We urge the Senate to oppose schedule 4.13:02:002150Bolkus, Sen NickSenator BOLKUSXE4SAALP00—Schedule 4 is a provision that we opposed last time and we continue to oppose it this time. I just take this opportunity to make a few points, because I think schedule 4, this extinguishment section, really high lights what has happened to this legislation in this place. Opposition parties and Senator Harradine have come in here with heaps of concerns about the government's 10-point plan. At the end of the process last time, something like 80 to 90 per cent of our concerns were not accepted by the Senate.The bill that came through the Senate last time was in no way an acceptable compromise to indigenous Australians but it was one that they were prepared to accept in order that the public debate could move on to other issues. On their part it was, in essence, copping a lot more than they would have hoped under any reasonable process of the parliament or of government.This time again, coming back here, we are faced with the same issues in terms of confirmation of extinguishment. This is one area where the voice of indigenous Australians has not been factored into a balanced outcome. What I find enormously depressing is that, though we are on item 4 or 5 of a list of 20 areas before the parliament, we already have heard reports of the Prime Minister saying in the party room that the legislation will not be acceptable. We are on day one in essence—we are at the first stages. In football terms, we are playing halfway through the first quarter, and yet the Prime Minister has said, `Well, this is not acceptable.'I say to the Prime Minister and to the Senate that our obligation is to try to work this through, not to be obstructive at every opportunity—not to be obstructive at every press conference, every doorstop and every meeting. People are trying to work this thing through. If they were not trying to work it through, they would not have been sitting in meetings day and night over the holiday break, over recent weeks, over recent hours, to try to resolve this. I find the Prime Minister's intervention once again to be totally obstructive and negative.I call on the Prime Minister, through Senator Minchin—who is also engaged in a process to try to get an outcome—to butt out for the next 24 hours, please, so that those in this place who have an interest can get an outcome, can try to get some balance into this 10-point plan. Let them have an opportunity to do so.The Prime Minister intervened last week when he offered to pay for a case to go to the High Court. Not only was that an abdication of leadership and responsibility but, given what we now know of the advice that the government got from the Australian Government Solicitor in respect of the outcome of the High Court case last week, it was a recipe for prolonged uncertainty. The government's own advisers are saying a number of things. They are saying, firstly, not to rely on the races power—the High Court has left this question unresolved.Senior government advisers, including the Chief General Counsel, have made it clear that in their view the legislation is discriminatory against Aboriginal Australians. If it is discriminatory against Aboriginal Australians, how can you say that it is beneficial to them? That is basically a contradiction in terms. When advisers are saying it is discriminatory and not to rely on the races power, for the Prime Minister then to come in and play games at a very critical part in this process is at least not helpful, and at most something which is designed to bomb the process out of the water.Despite those provocative interventions from the Prime Minister, we will continue in this process. We will continue in the way that we have—picking on words, trying to make incremental advances, trying to stop the government eroding common law rights—and we will see what we get at the end of it. The call to the Prime Minister is: at least for 36 hours will you butt out and let those who have a direct responsibility in this try to work it through.13:07:002151Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I am not sure what that five-minute political commercial for and on behalf of the Labor Party really has to do with the debate, which has already been going for about 11 hours, and we are only up to point five out of 20. Just quickly in response, the Prime Minister (Mr Howard) is simply reiterating the government's position that there is a bottom line for us that we cannot compromise. We have, as Senator Bolkus knows and acknowledges, engaged in a process of seeing whether there are reasonable alternative ways of meeting the government's objectives in policy outcomes that we desire, and we will continue to engage in that process.The 99 government amendments that have been brought forward are the result of that sort of process and a sign of our good faith to try to achieve outcomes consistent with government policy. All the Prime Minister was doing was reiterating that, and I think the debate that we are having here will benefit from an absence of political commercials.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator McKiernan)—The question is that schedule 4 stand as printed.Question resolved in the affirmative.13:08:002151Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—In order to avoid wasting the extra use of time in the Senate, I would ask that my vote and that of my colleague Senator Brown from the Australian Greens be noted as opposing this schedule.13:08:002151Bolkus, Sen NickSenator BOLKUSXE4SAALP00—Also the vote of the Australian Labor Party.13:08:002151Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—And the Australian Democrats similarly.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Is leave granted for those votes to be recorded in Hansard ? There being no objection, it is so ordered.13:08:002151Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Amendments Nos 5, 180, 181, 196, 254, 259, 261, 262 and 264 are consequential amendments, and I will not be moving them.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—That completes revised schedule No. 2. We now move to No. 3—indigenous land use agreements.13:09:002151Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I move:(11) Schedule 1, item 9, page 20 (line 10), at the end of subsection (3), add "A future act (other than an intermediate period act) that has already been done invalidly may also be validated as a result of such agreements.".(12) Schedule 1, item 9, page 22 (after line 21), after paragraph (a), insert: (aa) particular future acts (other than intermediate period acts), or future acts (other than intermediate period acts) included in classes, that have already been done; Note: Intermediate period acts are or can be validated only under Division 2A.(13) Schedule 1, item 9, page 22 (after line 31), after paragraph (e), insert: (ea) compensation for any past act, intermediate period act or future act;(14) Schedule 1, item 9, page 26 (after line 6), after paragraph (a), insert: (aa) particular future acts (other than intermediate period acts), or future acts (other than intermediate period acts) included in classes, that have already been done; Note: Intermediate period acts are or can be validated only under Division 2A.(15) Schedule 1, item 9, page 26 (after line 16), after paragraph (e), insert: (ea) compensation for any past act, intermediate period act or future act;(16) Schedule 1, item 9, page 27 (after line 20), at the end of subsection (2), add: ; and (c) if, for any part (the non-claimed/determined part ) of the land or waters in the area, there is neither a registered native title claimant nor a registered native title body corporate—one or more of the following: (i) any person who claims to hold native title in relation to land or waters in the non-claimed/determined part; (ii) any representative Aboriginal/Torres Strait Islander body for the non-claimed/ determined part.(17) Schedule 1, item 9, page 35 (after line 14), after paragraph (a), insert: (aa) particular future acts (other than intermediate period acts), or future acts (other than intermediate period acts) included in classes, that have already been done; Note: Intermediate period acts are or can be validated only under Division 2A.(18) Schedule 1, item 9, page 35 (after line 23), after paragraph (e), insert: (ea) compensation for any past act, intermediate period act or future act;(19) Schedule 1, item 9, page 45 (after line 5), after section 24EB, insert:24EBA Validating previous future acts covered by indigenous land use agreementsCoverage of section (1) The consequences set out in this section apply if: (a) details are on the Register of Indigenous Land Use Agreements of an agreement that includes a statement to the effect that the parties agree to: (i) the validating of a particular future act (other than an intermediate period act), or future acts (other than intermediate period acts) included in classes, that have already been done invalidly; or (ii) the validating, subject to conditions, of a particular future act (other than an intermediate period act), or of future acts (other than intermediate period acts) included in classes, that have already been done invalidly; and Note: Intermediate period acts are or can be validated only under Division 2A. (b) whichever of the Commonwealth, the State or the Territory to which the future act or class of future acts is attributable is a party to the agreement; and (c) where, whether under the agreement or otherwise, a person other than the Crown in right of the Commonwealth, a State or a Territory is or may become liable to pay compensation in relation to the future act or class of future acts—that person is a party to the agreement.Commonwealth acts valid (2) If the act or class of acts is attributable to the Commonwealth, the act or class of acts is valid, and is taken always to have been valid.State or Territory laws may validate their acts (3) If the act or class of acts is attributable to a State or Territory, a law of the State or the Territory may provide that the act or class of acts is valid, and is taken always to have been valid. The law may do so by applying to all acts, to classes of acts, or to particular acts, in respect of which the requirements of subsection (1) are or become satisfied. Non-extinguishment principle (4) If subsection (2) applies or a law makes provision in accordance with subsection (3), the non-extinguishment principle applies to the act or class of acts unless: (a) the act or class of acts is the surrender of native title; and (b) the agreement includes a statement to the effect that the surrender is intended to have extinguished the native title rights and interests.Compensation consequences (5) If subsection (2) applies or a law makes provision in accordance with subsection (3), the consequences set out in subsection 24EB(4), (5) or (6), and the consequences set out in subsection 24EB(7), apply to the act or to each of the acts in the class.(20) Schedule 1, item 30, page 129 (line 16), after "24EB(1)", insert " or 24EBA(1) or (4)".(21) Schedule 1, item 30, page 130 (line 3), omit "The", substitute "Subject to subsection (1A), the".(22) Schedule 1, item 30, page 130 (after line 34), after subsection (1), insert:Federal Court order not to remove details (1A) If: (a) the Registrar is or will be required to remove the details of an agreement from the Register in a case covered by paragraph (1)(a) or (b); and (b) the persons who, under the approved determination of native title mentioned in that paragraph, hold native title apply to the Federal Court for an order under this subsection; and (c) the Federal Court is satisfied that those persons accept the terms of the agreement, in accordance with the process by which they would authorise the making of such an agreement; the Federal Court may order the Registrar not to remove the details of the agreement from the Register. Note about Schedule 1, item 30: The heading to subsection 199C(2) (page 131, line 1) is altered by adding at the end "to remove details ".(23) Schedule 1, item 39, page 135 (line 5), after "Part 2", insert "(disregarding section 24EBA)".Perhaps we could—as we have been doing—just deal first with the government amend ments, because I think it makes sense to determine what shape the government bill is in for the consideration of the Senate. Generally speaking, the indigenous land use agreements provisions that we moved last time were supported by the Senate. I think there is consensus around the chamber that the deficiency in the current act is rectified by the inclusion of these ILUAs, and the ILUA provisions, generally speaking, have met with widespread support on all sides—on the indigenous side and on the industry and state government side. But, as a result of our four months of deliberation, consideration and discussion, we have identified some areas where some improvements can be made that I think should be acceptable to the Senate. They cover government amendments Nos 11 to 23, and I will speak just briefly to them.Government amendments Nos 11, 12, 14, 17, 19, 20 and 23 enable indigenous land use agreements about grants that may have already been made and set up a process by which such grants can be validated, if there is such agreement that that occur. Government amendments Nos 13, 15 and 18 make it clear that ILUAs can cover compensation for past acts, intermediate period acts or future acts. Government amendments Nos 21 and 22 are to section 199C which, among other things, require the registrar to remove all details about a body corporate or area agreement from the register of indigenous land use agreements.If an approved determination of native title is made that identifies native title holders who did not authorise the making of the agreement, the amendment will mean the registrar need not remove the details of the agreement from the registrar if the newly identified native title holders accept the terms of the agreement and apply to the Federal Court for an order against its removal. It is obviously sensible that, if newly identified native title holders are satisfied with the terms of the body corporate or area agreement, the details of that agreement remain on the register.The ILUA provisions are a sign of our commitment to the agreement's process, our belief that the agreements process, properly structured, is the most sensible and effective way to deal with native title issues on the ground and activities on native title land. We have moved these amendments in good faith in a manner that improves the process in a way I would have thought acceptable to the Senate.13:12:002154Bolkus, Sen NickSenator BOLKUSXE4SAALP00—The opposition supports amendments Nos 11 to 19, 20 and 23. We also support Nos 21 and 22, but we do feel that Greens (WA) amendments Nos 162 and 163 are better alternatives to Nos 21 and 22. If Nos 162 and 163 are not successful, obviously we will be supporting Nos 21 and 22. For the purposes of the debate at this stage, we could accept the government amendments, but we indicate now that we will be seeking to amend them through Greens (WA) amendments Nos 162 and 163.13:12:002154Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—It is important to note and put on the record that, although there was an area of agreement that the indigenous land use agreements should be in the legislation, there certainly was not a great deal of agreement in the way the government set about it or in the lack of understanding of or acceptance by the government of the changes to the way these were proposed by those very people who would be most involved with the process. It should be noted that the Greens (WA) do not consider agreements between mining companies and traditional owners to be the solution to native title.Indeed, the Mirrar people of the Kakadu region, who are currently facing tremendous problems associated with uranium mining being forced upon them on the basis of a previous agreement reached under duress with ERA and the Commonwealth and territory governments, are testimony to the dangers of such David and Goliath agreements. In addition, the Mirrar would, again, attest to the fact that income from mining royalties often causes more social problems than it fixes, and it is definitely not an adequate substitute for genuine land rights. In their case, it seems to me it has been used as an excuse by the Northern Territory government to ignore basic rights for education, health and housing within those areas on the basis that, to get those provisions, the people are required to sign up for mining—in this case, sign up for the mining of uranium.However, if indigenous communities are going to enter into indigenous land use agreements, there is really no point in having a situation where one group or individuals can be picked off, if you like, by those people who have the corporate expertise, legal advice and so on so other people feel they are forced into an agreement. Of the Democrat-Greens amendments to be moved, Senator Bolkus says he would prefer amendments Nos 162 and 163, though amendments Nos 20 to 31 would allow the representative bodies to get a look-in at agreements before they are signed off. We need to get some indication from Senator Bolkus as to whether or not that principle is supportable and if that accords with his statements in relation to those amendments.13:15:002154Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I want to say a few words about ILUAs. Whilst I am doing that, I will also give some thought to Senator Margetts's request. We moved a whole package of amendments last time in respect of indigenous land use agreements. We support the concept of ILUAs as the preferred means of resolving native title issues. They augment the future intermediate act and past act processes of the Native Title Act. They provide simple, flexible, low-cost processes and they provide certainty.They also demand a very important aspect of any negotiation—that is, good faith between the respective parties at an early stage. One of our major motivations for pursuing ILUAs is that we believe that that sense of coexistence and cooperation is important and it is best instilled through an agreement process rather than a confrontationist process through tribunals, courts or whatever.The ILUA process has been designed for maximum flexibility. There have been three types of agreements available: the body corporate agreement, the area agreement—registered native title claimants are involved all these—and alternative agreements, which also involve native title holders, claimants and rep bodies. We believe rep bodies have a significant role to play in the ILUA process. Not only do we believe that but also the government does. It has enhanced the role of rep bodies under the act. Their responsibility stretches from and between a whole range of factors—making informed decisions and being able to pool different aspects of a claim together. In essence, they can provide greater certainty in the process.As I said, we support the government amendments in this respect, but we do have a few amendments of our own as well. Our amendments expand the application of ILUAs to include the resolution of past and intermediate acts as well as future acts. For instance, we see some shortcomings in some of the provisions in the act. We welcome the cooling-off period of one month prior to the registration of a body corporate agreement.As I said earlier, the role of rep bodies is important and our amendments go towards providing that there are consultations between the body corporate and a rep body to ensure consistency in claims. We take as a benchmark the native title registered bodies' corporate regulations, which provide for a role for rep bodies. We think in the interests of consistency that the legislation should reflect that as well.Our amendments ensure a couple of critical points in this area. The ILUA concept has been expanded by government to some extent, but the government's policy is to ensure that ILUAs cannot be used to validate past and intermediate period acts. We would like to go further than what the government provides, but we also recognise that we do not have the numbers in the Senate to do so. Therefore, our amendments will ensure that ILUAs can cover compensation issues and the issue of extinguishment in a whole range of areas where the government does not incorporate them.Our amendment N11 amends the government's amendment No. 12 so that government policy is given effect and corporate agreements cannot validate past and intermediate period acts but can deal with extinguishment issues. That same principle is reflected in our further amendments. Once again we say that ILUAs can be used in respect of extinguish ment issues for past and intermediate period acts. We say that they can be used for compensation issues in respect of those acts as well. So that is the impact of what we are trying to do with most of our amendments here.Senator Margetts, if I can come back in a few moments to your inquiry as to what we will be doing specifically with each of your amendments. If I can have a moment to do that, I will come back into the debate soon.13:20:002155Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—In a general sense I want to speak about the whole issue of indigenous land use agreements. As Senator Margetts has said, there are some negatives associated with these agreements, but in most cases it is a very positive move to seek to have at a local level these kinds of disputes resolved rather than resort to the courts or to adversarial methods of resolving disputes. In Queensland there have been a number of examples of this—not all of them have been through the indigenous land use agreements or the native title bill processes, but nevertheless the whole issue of indigenous land use agreements has been a prompt, if you like, for a lot of initiatives right around Australia where people even beyond the whole native title issue have decided that they need to get together and resolve these kinds of differences.I think we ought to take seriously what Senator Margetts said about there sometimes being an exploitation of inequality between people in arriving at agreements. I think we ought to signal very seriously that that is not the way to go and that is not the way that indigenous land use agreements are meant to be used. Let me for a moment also speak about, for instance, the Australian Local Government Association, which deserves to be commended for its attempts to put into place and to give to its own association and particularly local councils some tools whereby, even beyond the whole issue of whether or not native title exists, they can seek to come to a positive working relationship with any Aboriginal or islander people that exist within their local shire boundaries.I would like particularly to commend Ed Wensing, the Native Title Project Manager of the Australian Local Government Association, for seeking to have an understanding of the need for this kind of agreement extended throughout the whole of the local government area. The Australian Local Government Association put out a leaflet, Working with native title in local government. The conclusion of the leaflet underlines what we are seeking to do here. I note that everybody agrees that indigenous land use agreements, if used in the proper way, are a good thing; and that the amendments that we are discussing, in most cases, are not in conflict, although there is certainly one conflict with Democrats-Greens (WA) amendments 162 and 163. I guess we will come to a vote on that. Let me read what the association says:Native title must be included as a consideration in most, if not all, dealings involving land where it cannot be established beyond doubt that native title has been extinguished.Native title as an issue for consideration should be added to all checklists for dealing with land and in carrying out public works and services. This is a practical reflection of changing the way we think about land.In the interests of reconciliation, Councils might also find it an act of good governance to consult with their local community on the identification of cultural sites, regardless of land tenure.So they are not limiting themselves to only those cases where they might be forced into it, but they are going beyond that. It continues:For example, Ballina Shire Council in NSW has signed an agreement with the Jali Aboriginal Local Land Council which establishes a procedure for taking sites of Indigenous cultural, spiritual and heritage significance into account in all planning and development processes.I think it is worth drawing the committee's attention to what the Australian Local Government Association is doing. It is a pity that other levels of government, at both state and federal levels, could not take a leaf out of the book of the Local Government Association and see just how positive they are in their attempts to bring about these kinds of agreements, and to recognise within their own boundaries the importance both of native title and of simply working towards reconciliation between all people in this country.13:25:002156Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I recognise that there is a conflict between government amendments 21 and 22 and Greens-Democrats amendments 162 and 163. I urge the committee to support Greens-Democrats amendments 162 and 163 when we get to them, because we believe that it is important that the Federal Court cannot sign off on an indigenous land use agreement unless it is satisfied that there has been no duress. I do not think that is unreasonable. With any kind of so-called agreement, that would have to be the case. In the case of a dodgy agreement—one that has been created under duress—which will never be satisfactory, then the court, in this case, can change that agreement so that it is satisfactory to the parties involved.13:26:002156Bolkus, Sen NickSenator BOLKUSXE4SAALP00—Senator Minchin, there is one question that I would like you to address. You may want to take it on notice, and you may have some time to do so. Your amendment 23 is consequential on amendment 19. What you seek to do is amend sections 232A to 232C. We find it a bit hard to understand why you are pursuing this amendment. Our belief is that intermediate period acts and invalid future acts, to which 24EBA relates, are mutually exclusive. We take the view that this amendment probably does not do any harm, but we are having enormous trouble trying to work out what it does. You may want to take this on notice and come back to it after question time. If you can answer it now, that will be great; if you cannot, could you take it on notice?13:27:002156Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—Senator Bolkus, I am advised it is a technical amendment which has been explained to you and your advisers.XE4BOLKUSSenator Bolkus—Not well enough, I fear!JX4Minchin, Sen NickSenator MINCHIN—We may have to take it on notice and seek to explain it in more detail.Amendments agreed to.13:28:002156Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I move:(N11) Schedule 1, item 9, paragraph 24BB(aa), after "other than" (wherever occurring), insert "the validation of".(N12) Schedule 1, item 9, page 22 (after line 31), after paragraph (e), insert: (ea) the consequences of any act with respect to which an agreement can be made (other than the validation of past acts or intermediate period acts);(N13) Schedule 1, item 9, paragraph 24CB(aa), after "other than" (wherever occurring), insert "the validation of".(N14) Schedule 1, item 9, page 26 (after line 16), after paragraph (e), insert: (ea) the consequences of any act with respect to which an agreement can be made (other than the validation of past acts or intermediate period acts);(N15) Schedule 1, item 9, paragraph 24DB(aa), after "other than" (wherever occurring), insert "the validation of".(N16) Schedule 1, item 9, page 35 (after line 23), after paragraph (e), insert: (ea) the consequences of any act with respect to which an agreement can be made (other than the validation of past acts or intermediate period acts);These amendments relate to body corporate agreements, area agreements and alternative agreements. In short, the government's policy is to ensure that ILUAs cannot be used to validate past and intermediate period acts. However, as I said earlier, we believe that the government amendments go further and they limit ILUAs to compensation issues only. We believe that it should be left open as to whether an ILUA can deal with the extinguishment regarding past and intermediate period acts. Agreements are voluntary and we think the question of extinguishment should be left open for the process. This applies with respect to the three sorts of agreements—the body corporates, the alternative agreements and the area agreements.The other impact of our amendments is to ensure that, although government policy is given effect and corporate agreements cannot validate past and intermediate period acts, the extinguishment issue can be dealt with. That is the first point. The second point is that we should provide a capacity for area agreements, alternative agreements and body corporate agreements to deal with compensation issues arising from past and intermediate period acts. The government does not provide for compensation issues arising from past and intermediate period acts to be dealt with. We believe that they can be. It is a very limited add-on to the government's provisions and does not in any way impact on the validation process adopted by the government.13:30:002157Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—As I understand it, the proposition is that parties should be able to agree to, in effect, undo what the bill says about the effect of past acts or intermediate period acts upon native title, which is not a suggestion we are able to take up. It should be remembered and recognised that, in terms of future acts, agreement can be reached as to the effect of future acts on native title. But to try to put in place a regime which somehow can, in a sense, undermine or affect what the act otherwise says about the effect of past acts or intermediate period acts on native title does not seem a principle that we could endorse.I would point out, as we said before, that in this validation area we are dealing almost overwhelmingly with mining leases which are, of course, subject to the non-extinguishment principle. They do not actually extinguish as in the current act. Mining leases are a non-extinguishing grant, and that continues, and that is recognised in the validation regime, and overwhelmingly that is what we are talking about. In practice, I am not sure what would be achieved by this.We also draw to the Senate's attention our amendments last time of 47A and 47B to ensure that past grants of exclusive possession on lands occupied by Aboriginal people can be ignored for the purposes of determining their native title claims. I think we have specifically dealt with occasions on which issues may arise as to the effect of prima facie past extinguishment in a sensible and practical way, but we think this does go just a little too far.13:32:002157Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Mr Temporary Chairman, I indicate that the Greens (WA) will be supporting the Labor amendments here.13:32:002158Harradine, Sen BrianSenator HARRADINE6H4TASIND00—Mr Temporary Chairman, are we dealing at the present moment with N11 only, or are we also dealing with—10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator McKiernan)—The group from N11 through to N15.6H4Harradine, Sen BrianSenator HARRADINE—Thank you. I will pick out one particular provision in the opposition amendments. Amendment N12 deals with schedule 1, item 9, which inserts this provision in that particular schedule on page 22 relating to the coverage of body corporate agreements:The agreement must be about one or more of the following matters in relation to an area:Then the addition that N12 is suggesting is this:(ea) The consequences of any act with respect to which an agreement can be made (other than the validation of past acts or intermediate period acts);When you look through government provision 24BB, it says you can deal with the acts, but I cannot see why you cannot deal with the consequences of the acts. If you can deal with the acts, why can't you deal with the consequences of the acts?I would like the government to explain why they refuse to accept that amendment of the opposition when in fact paragraph (f), which deals with matters which can be covered by body corporate agreements, says:(f) any other matter concerning native title rights and interests in relation to the area.That is now the government's proposal. Why will the government not accept opposition amendment N12, just as an example?13:34:002158Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—As I have previously explained, the problem is that it purports to enable, by agreement, the undoing of the legal effect of the bill in relation to validation without providing a mechanism thereby to effect that undoing. We are talking about the bill presented and the bill becoming an act in terms of the whole scheme of the act, and it provides for consequences of validation as in the current act—a category A to D effect of validation—and that is what applies.This provision purports to enable parties to agree to vary that effect without, in our view, providing the legal mechanism by which you do undo what the bill would provide in relation to validation. The bill says clearly what shall happen as a result of the validation of certain acts in respect of the effect on native title, and that is the category A to D impact.But then this add-on of allowing parties to agree in a sense to vary what is provided by statute to be the effect seems to us not to achieve what is being sought and to run into significant legal difficulty. I have to say, perhaps, if this had been able to be discussed some time before, it may have been possible that we could have discussed a way in which whatever the objective is could have been reached, but we do not think this will do it, and it does run into the brick wall of what the bill otherwise provides. It cannot really be allowed to be undone, and it is not able to be undone in this way in our view.13:36:002158Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I think Senator Harradine has a valid point. If you look, for instance, at paragraph (f) on page 23 of the amendments, it is a very broad sweep:any other matter concerning native title rights and interests in relation to the area.We are seeking to incorporate consideration of the consequences of any act with respect to which an agreement can be made. Can I say to you that we explicitly exclude the question of validation. If you were to keep reading to the end of paragraph (ea), it says:. . . . (other than the validation of past acts or intermediate period acts);In a sense, one could argue that our paragraph (ea) is in fact more limited than your paragraph (f), because there is no such exclusion from (f). I would ask the government to reconsider its position here. It is an amendment which, as I say, is more limited in application than paragraph (f), but one which I think the government should pick up.13:38:002158Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—This is getting highly legalistic, but it is our interpretation of this provision that it would purport to allow agreement about the consequences of validation. Admittedly, it does exclude agreements about the validation per se, but there is a difference between seeking to reach agreement about whether something is validated or not, on the one hand, and, on the other hand, seeking to reach agreement about what the consequences of that validation are.The way that this is expressed, clearly, to our legal advisers, suggests that it remains open to parties to agree about the consequences of the validation, which we, as I say, do not believe can be given effect to, given that the parties must operate in terms of these indigenous land use agreements within the framework of the act and cannot agree, unless specifically stated and allowed for in the bill, to sweep away the law or agree that the law should not apply to them. That is, of course, how (f) should be read. `Any other native title rights and interests', sure, but within the context of the bill and the legal framework provided in the bill. They cannot agree just to decide which parts of the law shall or shall not apply to them.Maybe the opposition is not intending to draw this distinction in N12, but clearly, on our legal advice, there is a distinction that while it does remove the capacity to agree about validation per se, it does not remove the purported right to agree about the consequences.13:39:002159Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I do not think you can have it both ways here, Senator Minchin. If (f) is to apply within the context of the law, then (ea) is also to apply within the context of the law, because they are all part of 24BB and they are all governed by the same framework of the law. The point I make to you—maybe I should let Senator Harradine pursue this as well, if he wants to—is that, in the same way that (f) is going to be governed by the framework of the law, so is (ea). Also, given the fact that governments are parties to this extinguishment process, you have the other fall-back position that you obviously would not be discussing the validation of past or intermediate period acts.Your (f) is broader than our (ea). If they are all working under the same framework, I do not know why the consequences of an act cannot be taken into account, although any other matter concerning native title rights and interests can be.13:40:002159Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I would like to add a little to that point. Perhaps you can respond to both of us at the same time, Minister. The indigenous land use agreements can actually remove rights that indigenous people have under the act. It is all very well to say that people cannot move to change rights that benefit other people, but the reality is that perhaps you are making it a one-way street and saying that indigenous land use agreements can only remove rights for indigenous people but cannot alter other rights established under the acts.13:41:002159Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—With respect, Senator Bolkus, the ALP cannot have it both ways, either. As we understand it, the intention is to allow parties to agree to vary the consequences of validation. If that is the intention, it runs contrary to the bill—and, hopefully, the act, as amended—as to the consequences of validation. So if that is your purpose, this will not achieve it. You would have to amend other parts of the bill relating to the effect of validation.If you do not intend this to mean that parties can agree to vary the consequences of validation, then it is not needed because, as you say, you have got (f)—any other matter concerning native title rights and interests can be agreed to, but obviously within the framework of the act, as amended. That is why we suggest to you that it is not going to achieve what we understand to be your purpose and is not a purpose that we believe should be able to be achieved.13:42:002159Harradine, Sen BrianSenator HARRADINE6H4TASIND00—There is sufficient confusion in my mind that there may need to be some other amendments to achieve the particular objective. I did raise paragraph (f) and pointed out that the agreements can be about any other matter concerning native title rights and interests in relation to the area. I think we all hope that the ILUAs will be a very significant part of the process of achieving just and fair outcomes. I am somewhat confused about the question that has been raised—as to whether what is being sought to be achieved by the opposition amendments may not be achieved unless there is an amendment in relation to the provisions, the consequences, of validation.13:44:002160Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I suggest that the amendments be deferred until later today or tomorrow. As I said to Senator Minchin yesterday, when we said we would give a commitment that this bill would be through before Easter, I did not mention to him that I am of the Greek Orthodox faith and our Easter is next week, so we might have a bit longer to deliberate on this.Progress reported.Sitting suspended from 1.46 p.m. to 2.00 p.m.Questions Without Notice216021602160Crowley, Sen RosemarySenator CROWLEYZF4SAALP00—My question is directed to Senator Newman, the Minister for Social Security. Minister, is it a fact that your department's youth and student communication team has produced a youth allowance media strategy which listed the main negative aspects of your youth allowance as being: firstly, that unemployed over-18s will still be financially dependent on their families until they are 21 and families will now have to support their young unemployed for another two years; secondly, youth allowance will cause more family disputes and encourage family breakdown; thirdly, youth allowance will cause young people to leave home and leave the security of family support; fourthly, youth allowance will cause more youth homelessness; and fifthly, $23,000 is not a lot of money before youth allowance starts to cut out because of the parental income test. Minister, wouldn't it be more appropriate for you to focus your energies on rectifying these clearly specified negative aspects of your youth allowance, rather than wasting time and taxpayers' money trying to sell the Australian people a dud?2160Newman, Sen JocelynSenator NEWMANBE4TASLPSocial Security10—I did not notice Senator Crowley getting too involved in the debate about the youth allowance when it came through the Senate—obviously she wants to run with the hares and hunt with the hounds. As a matter of fact, senators would recognise that the lines that Senator Crowley was using just now were the allegations that were being made by some of her fellow travellers as we approached the debate. Those lines are still being run. It is a wonder you did not add, Senator, that students are going to be seriously disadvantaged—but, of course, that was a National Union of Students line and the NUS have been lobbying for 20-odd years to get rent assistance eligibility for students. It is a wonder you did not include that.In fact, Senator—to deal with the allegations of some of your mates—it is sensible for the government to prepare information for people to demonstrate how wrong they are. You would know that, because the debate took about 20 hours in the Senate just a couple of weeks ago. These matters were explored at length. It is very important that families do take responsibility for their children while they are financially dependent. You decided to do that for students up to the age of 22. Now, students up to the age of 25 are parentally means tested. Are you suggesting—certainly the government does not—that people who are unemployed should not also be supported by their parents, to the extent that those parents are able?Getting to the means test that you referred to in your question, Senator, you may have forgotten that that was the starting point of your Austudy means test. We have not only adopted it, we have made it more generous. Why should we put into place more generous proposals for those who are unemployed than for those who are students? We have given young people of similar ages and similar financial circumstances the same treatment. We are about encouraging young people to get the skills they need so that they are employable.It is very interesting to notice that the Australian opposition are going backwards on these sorts of social policy matters except, perhaps, for one or two of your young Turks. Your contemporaries in Britain are saying this is the route to go. We cannot condemn young people to a life of long-term unemployment. They and their parents need to be encouraged to understand that skill-less jobs are disappearing all around the world. In Australia, we must make sure that our young people do acquire the skills so that they do not spend a long time in unemployment.In addition, we believe that those who are unemployed and those who are students should have the same financial assistance. There should not be an incentive to be unemployed. If you want to talk about the youth allowance, Senator Crowley, I would be happy to talk to you about it any time. It is an excellent social policy measure. It is real reform which is badly overdue. It certainly makes it easier for families and for young people to access the entitlements that they have, because the system that we inherited from you was so complex that people fell between the cracks of their entitlement and they did not always know that they were entitled. We have improved that for young people, and that is a major reform.2161Crowley, Sen RosemarySenator CROWLEYZF4SAALP00—Madam President, I ask a supplementary question. Minister, is it true that your department is dedicating an officer to you and your office for the specific purposes of monitoring the media on youth allowance issues and providing you and your office with appropriate responses to the rising criticism of it? Minister, how do you justify this abuse of taxpayer funded resources, given that your personal staff allotment is already 15 people?2161Newman, Sen JocelynSenator NEWMANBE4TASLPSocial Security10—I have not the faintest idea whether they have allocated somebody in the department to monitor these things. That is not a matter that has been brought to my attention. My office has a very efficient work force that has been monitoring the media on this issue and answering it very effectively. I do not know that there is anybody else dedicated to it.21612161Ferris, Sen JeannieSenator FERRIS5L6SALP10—My question is also to the Minister for Social Security. Minister, Australians want a social security system which is fair and equitable and which looks after those with a genuine entitlement to assistance. What action has the government taken to improve the integrity of the social security system and to ensure that payments only go to those who are entitled to them? In particular, what is the government's record in recovering money which has been paid to people who are not entitled to it?2161Newman, Sen JocelynSenator NEWMANBE4TASLPSocial Security10—I am grateful to Senator Ferris for that question because it is one that we will never hear from the opposition. Once again it is an area where they were not prepared to take leadership. They were not prepared to introduce reforms, and I am talking about making sure that our social security system has integrity, particularly in the eyes of those who fund it and who must give it support.The Labor Party said we could not do the cleansing of the social security system. They said we were wrong when we said that there was plenty of room to improve compliance in the social security system. Labor told everybody they had cleaned out the cheating. Labor's Minister for Social Security told the House on 12 October 1994 that an independent review of the system found that the compliance problem was `effectively solved'. Labor claimed its system was at the `cutting edge' in terms of combating fraud and compliance problems.Under Labor, the cutting edge must have been very blunt. Today I will present the second quarterly report on social security compliance activity for the first six months of the 1997-98 financial year. More than 1½ million entitlement reviews were carried out between July and December 1997. Over 171,000 people in that time had their social security payments cancelled or reduced—a 25 per cent increase on the same period in 1996-97—which means that we are saving $13 million more a week on payments that we do not have to make for the remainder of this financial year.During this six-month period, 1,319 people were convicted in the courts for welfare fraud. We have increased our recovery of outstanding debts by over 31 per cent to $230 million during the first six months of 1997-98. During the 18 months to December 1997 the coalition government has recovered more than $600 million in debts owed by people who have received more than their entitlement.LI4PATTERSONSenator Patterson—It is staggering.BE4Senator NEWMAN—It is staggering. But get this: we have been getting back about $1.1 million a day under this government for that period. That is a 76 per cent increase over the amount of debt recovered under the last 18 months of Labor.LI4PATTERSONSenator Patterson—They are quiet now.BE4Senator NEWMAN—Very quiet, and they talked about being at the cutting edge. It is important that people understand the importance of this recovery of debt.Opposition senators interjecting—BE4Senator NEWMAN—I see they do not want anybody to hear this. If you try to claim social security payments which you are not entitled to, we not only stop the payment, we also make you repay the money you have wrongfully received. Today I want to commend heartily the efforts of the staff in Centrelink who have responded so well to this government's focus on improving compliance and stamping out fraud. Their efforts clearly demonstrate the importance of leadership by government on this issue, leadership which was sadly lacking under the previous Labor government.Our efforts are strongly supported by Australians. During the first six months of this financial year there were 27,447 public tip-offs which led to 7,400 payment cancellations or reductions. That is a 31 per cent increase on the same period last year, because Australians recognise the need for a social security system with integrity. It protects those who are genuinely in need of assistance and it demonstrates to those who fund the system, the taxpayers, that their money is spent carefully and on those who are entitled to help. For the small number of people who still have the misguided view that social security is easy money, it is not a matter of if but when they will be caught. (Time expired)2162Ferris, Sen JeannieSenator FERRIS5L6SALP10—Madam President, I ask a supplementary question. Minister, thank you for that comprehensive response. You made reference in your answer to the leadership of the coalition government in cracking down on fraud and non-compliance in social security. Could you tell the Senate how this government's record compares with that of the previous government?2162Newman, Sen JocelynSenator NEWMANBE4TASLPSocial Security10—I thank Senator Ferris for her supplementary question.Opposition senators interjecting—BE4Senator NEWMAN—It is clear that the opposition do not want to hear the answer to that either, because the figures in the report which I am tabling today are proof that Labor is not interested and that we have put our words into action. We put in the resources, we gave the leadership, and the Social Security and Centrelink staff responded to the task. They were very heartened by the fact that at last they had a government that was prepared to take action in an area which they believed needed serious attention.The previous government had 13 years to improve compliance and clean up the system, and all we got from them was rhetoric. We got no leadership, we got no resources going into the job. When he was Minister for Social Security, Brian Howe said, `If there have been problems in terms of social security fraud and overpayments, let me say that this government has done more to tackle those problems than any previous government.' What a lot of codswallop. When Graham Richardson was minister, he announced an amnesty, for goodness' sake. That is the sort of leadership they got under Labor. (Time expired)Distinguished Visitors216210000PRESIDENTThe PRESIDENT—Order! I draw the attention of honourable senators to the presence in the chamber of a parliamentary delegation from the Republic of Kiribati led by the Hon. Teiraoi Tetabea. On behalf of honourable senators, I have pleasure in welcoming you to the chamber and trust that your visit to this country will be informative and enjoyable.UNKNOWNHonourable senatorsHonourable senators—Hear, hear!Questions Without Notice216321632163Evans, Sen ChrisSenator CHRIS EVANSAX5WAALP00—My question is directed to Senator Newman, the Minister for Social Security. Minister, will you confirm that your department's youth allowance media strategy suggested that you identify young members and senators who could act as `ambassadors' for your youth allowance? Have you appointed any ambassadors as yet? Did you accept your department's advice that their role was `to try to counteract negative publicity being spread by Natasha Stott Despoja and Jenny Macklin?' Minister, how do you justify your department taking such a highly political role in this matter?2163Newman, Sen JocelynSenator NEWMANBE4TASLPSocial Security10—The question is from a member of a former government that spent money like water on a whole lot of things, including advertisements. Do you remember the Working Nation advertisements? Do you remember the superannuation advertisements? Do you remember the bread and the circuses that were paid for by the taxpayer on behalf of Mr Keating, Mr Beazley and other people sitting opposite?Opposition senators interjecting—10000PRESIDENTThe PRESIDENT—Order! There is too much intervention.BE4Senator NEWMAN—What I will be doing is selling a most excellent social policy reform and explaining the details of what has been a major reform of turning five payments paid by two departments at 13 different rates into one payment paid by Centrelink.Opposition senators interjecting—10000PRESIDENTThe PRESIDENT—Order! Senators on my left will cease interjecting.BE4Senator NEWMAN—We have something very good to explain to the Australian people. But some of the friends of the Labor Party—and by that I include some of the minor parties in this place; no names no pack drill, of course—do not like to see this government taking such a pro-active role in social security reform. They do not like to see us making sure that students are on an equal level with the young unemployed. They do not like to see us giving incentives to young people to study. They are sometimes very careless with the truth—that might be a way of putting it.I do not apologise in any shape or form for making sure that young people and their families, and the communities in which they live, are properly informed about the important social policy reform called the youth allowance. It is a vitally important measure. Those of you who have the good fortune to live in regional Australia would understand full well the importance of families being able to afford to send their young people away to study. In the case of children who go away to study to acquire skills, rent assistance will be a huge improvement for families with more than one child in particular.Honourable senators interjecting—10000PRESIDENTThe PRESIDENT—Order! There are far too many interjections in the chamber.BE4Senator NEWMAN—I may be being unkind to the opposition, but I seem to have notice a cacophony of sound whenever I endeavour to put on the record just how important these reforms are to Australia. They are not only important to young Australians; they are also important to their parents and they are important to the communities they live in. Do you want to condemn young people to live in regional towns where there is little work unless they are skilled and where they cannot afford to go away to study and acquire those skills? If that is what you stand for, speak up, because that is what I think you stand for.As far as ambassadors are concerned, all my colleagues will be ambassadors for the youth allowance and I will tell you why: because some of us have grey hair and grandchildren and we are thinking of the future. Some of us are parents and are thinking about our kids' current life.Opposition senators interjecting—10000PRESIDENTThe PRESIDENT—Order! The level of noise in the chamber is absolutely unacceptable and behaviour is in breach of the standing orders.BE4Senator NEWMAN—The opposition fail to acknowledge that we are proud of this reform. We think it is a major important initiative that is going to help our country and help our kids. We would be happy for everybody to sing its praises. I invite you to join us because some of you are young, some of you have grey hair and some of you are just in the middle, and this will be important for our country for years to come. So be ambassadors. You won't get paid, but you will do something for your country, at last.2164Evans, Sen ChrisSenator CHRIS EVANSAX5WAALP00—I ask a supplementary question. I am glad, Minister, that you have acknowledged the role of Senators Crane and Lightfoot, et cetera, as ambassadors for this program. Minister, is it true that the media strategy refers to the need to `negotiate with television producers to include a storyline on a television show like Home and Away or Neighbours '? Minister, isn't the department showing undue sensitivity in omitting a storyline on a series such as Keeping Up Appearances ?2164Newman, Sen JocelynSenator NEWMANBE4TASLPSocial Security10—Senator Calvert says the opposition looks more like the Adams Family over there, especially the Leader of the Opposition.Honourable senators interjecting—10000PRESIDENTThe PRESIDENT—Order! The level of intervention is absolutely unacceptable. It is impossible to hear what is going on. There are many senators behaving in a way that is in breach of the standing order, some of them persistently and I think some of them wilfully. I shall take note of that.BE4Senator NEWMAN—It may surprise the opposition that I do not really have much time for watching soapies. Obviously you have a lot of time on your hands just at the moment. If there is any advice coming to me from those who are expert in the field, I will be glad to study it.21642164Coonan, Sen HelenSenator COONAN2M6NSWLP10—My question is addressed to the Minister for Justice. Minister, last night during the adjournment debate, Senator Robert Ray alleged that two members of parliament had generated false receipts, presumably for tax purposes. What is your response to these claims? Are the Australian Federal Police investigating these claims? Is it an offence to destroy evidence or to urge others to do so?2164Vanstone, Sen AmandaSenator VANSTONE7E4SALPMinister for Justice10—I thank Senator Coonan for a particularly astute question. Yes, Senator Ray did make some very serious inferences, I will say, in the Senate last night. I have subsequently had a discussion with Senator Ray about that. Senator Ray puts the case that he did not specifically allege that two senators had committed fraud. But what he did say was that certain conduct had taken place and the only purpose for which he could assume it was done was for taxation purposes. So an inference or an allegation: I am happy to give way to what Senator Ray suggests in that respect. But what he has suggested is that two MPs have used their computers to generate false receipts for tax purposes. In raising these allegations in this chamber before the appropriate authorities were notified, Senator Ray has behaved in a most irresponsible fashion.The proper course of action for Senator Ray would have been to raise the matter with the appropriate authorities and then to remain silent until an investigation was complete. It is well understood what happens. If you say to someone who is perpetrating criminal conduct, `Hey, by the way, I've just told the cops what you're doing and they'll be round to get in a minute,' what do you think they are going to do? They are going to cease the conduct and get rid of the evidence. Senator Ray is an experienced senator in this place. He has been a minister and a cabinet minister. He understands full well the consequences for law enforcement of tipping off criminals in advance of an investigation. He understands the consequences of that very clearly.Today I have referred these matters to the Australian Federal Police. I have some reason to believe that they have today been referred to the Australian tax office for investigation. But I might say I suspect it is too late. Senator Ray was in this place last night and he had this to say. This is all under privilege, so he does not have to worry. He would not be treated like a normal citizen. This is under privilege in what he used to refer to as the coward's castle. He said:. . . I am not going to name the two members . . . 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 Senator Ray say? He will say, `I was trying to stop the criminal conduct.' As I read this, he said to people on this side, `Why don't you go and tip somebody off to destroy the evidence, to destroy some evidence.' It is an offence to incite, to urge, aid or encourage someone to commit an offence under the Crimes Act. It is an offence to destroy evidence that might be used in a criminal proceeding with the intent thereby to prevent it from being used in evidence.I accept that Senator Ray will probably say—and it is in keeping with his normal demeanour in this place and normal commitment to the proper processes being undertaken—that he was not seeking to get people to destroy evidence so that it could not be used in court proceedings, and I would accept that. But I have to say, Senator Ray, that, if you were a normal citizen and you did not have the protection of privilege, you may well have to be arguing that in court. You would have to say why it was that you thought it was appropriate to tip the alleged criminals off and then say, `And, by the way, there's some evidence that might be key evidence. You don't have to destroy all of it, just some that might be used,' and then say, `Look, why don't you get it off your hard disc,' with all the opportunities that that takes away from law enforcement. (Time expired)21652165Forshaw, Sen MichaelSenator FORSHAW656NSWALP00—My question is directed to the Minister for Social Security. Minister, is it true that some of the miners in Cobar and Goulburn who have lost their jobs as a result of the mine closures have still not received their entitlements to unemployment benefit? How can this be so when you have given—WP6LIGHTFOOTSenator Lightfoot—Pass the Wik bill and they will get jobs.656Senator FORSHAW—Senator, we are talking about people who have lost their jobs here. Why don't you just keep quiet and listen. Minister, how can this be so when you have given repeated assurances that there will be no further delays? Minister, don't you have the capacity within your portfolio to provide emergency assistance to these miners and their families in the same way, for example, that Commonwealth emergency payment was made to the victims of the Katherine floods?2165Newman, Sen JocelynSenator NEWMANBE4TASLPSocial Security10—As at 26 March, 209 claims for social security payments had been lodged by former employees of the mine at Cobar. All claims have been processed with 199 being granted payment. On Friday, 20 March the administrator of the mine announced that it would be able to pay out former employees' termination entitlements at a rate of 50c in the dollar. I am advised that former employees have accepted this offer and some have received their termination payments. Due to the payout of their termination payments, some ex-employees may be subject to an income maintenance period. In some cases, their existing social security payments may be reduced. However, most will have their social security payments suspended for whatever the period.The income maintenance period will apply from the date that the leave payments are made. The income maintenance period provides that any leave payments—for example, annual leave, long service leave and sick leave—paid to a person when they become unemployed are treated as income from the date of payment for a period equal to that covered by the leave. Given that the administrator has provided for leave payments at a rate of 50c in the dollar, the income maintenance period is calculated at a rate that corresponds to half of the dollar amount offered to the miners and for a duration that is equal to the actual period that the leave payments were accrued.I understand that, subject to decisions of the administrator, these miners may receive the balance of their leave payments at a later date. If that is the case, they will not be subject to a further income maintenance period. As at 26 March 1998, there were approximately 144 cases where an income maintenance period has been imposed.2165Forshaw, Sen MichaelSenator FORSHAW656NSWALP00—Madam President, I ask a supplementary question. The minister did not answer either yes or no, but I take it from the detail that she provided in her answer that she in fact acknowledges that there are a number of miners who have still not received their entitlements to unemployment benefits. Minister, given that you concede that that is the case and that they are faced with the income maintenance test period still having to run out, and given that the Prime Minister has refused to help the sacked miners, will you at least investigate the possibility of providing some assistance through your department to these people who are still waiting for any assistance to come forth?2166Newman, Sen JocelynSenator NEWMANBE4TASLPSocial Security10—I did give the senator more than a yes or no. Next time perhaps I had better stick to yes or no and not give him the rest. I thought he would really be interested in the miners and I gave him all the information I have in my brief. I would point out to him—and I do not have this information here—that all but 10 claims had been granted as at 26 March and I am assuming that those 10 people have been assets tested and found not to be eligible for payment or income tested and may not have been eligible on other grounds.656FORSHAWSenator Forshaw—The point is there are still people waiting. Are you going to give them assistance in the meantime?BE4Senator NEWMAN—Senator, of the 209 claims made as at 26 March, 199 were granted. That leaves you with 10 people who I presume—I do not have that information here—are in a position like anybody else in claiming from social security, in that either their income or their assets count them out.21662166Murray, Sen AndrewSenator MURRAY3M6WAAD00—My question is to the Assistant Treasurer. Minister, is it true that over 55 per cent of the 8,000 multinational or transnational companies in Australia pay no tax? Is it not the case that the tax office is totally incapable of enforcing transfer pricing provisions across these 8,000 companies and that Australia is therefore being robbed blind by many multinational companies not paying their way? What does your government intend to do to stop the loss of hundreds of millions of tax dollars which should be paid by many multinational or transnational companies?2166Kemp, Sen RodSenator KEMPWW4VICLPAssistant Treasurer10—Thank you, Senator Murray, for that question. Senator Murray—unlike the Labor Party—has shown an interest in tax avoidance issues and, in general, perhaps with one or two exceptions, has been prepared to accept the government's measures in this area which, regrettably, have been frequently opposed by the Labor Party.Senator Murray, in answer to your question, as you are aware, all companies in Australia are subject to an Australian tax of 36 per cent on their taxable income. This applies regardless of whether they are Australian companies or non-resident companies doing business through a permanent establishment in Australia, and regardless of whether they are owned by resident or non-resident shareholders.Non-resident companies carrying on business through a branch in Australia paid some $295 million in tax in 1995-96—these figures come from the ABS. ABS data on the tax paid by foreign controlled Australian resident companies is not available because those companies are included in the statistics for resident companies. In 1995-96, income taxes levied on resident companies, including petroleum resource rent taxes, amounted to some $17.5 billion.Non-resident companies investing in Australia while not actually carrying on a business here through a permanent establishment are, unless specific exemptions apply, subjected to withholding taxes on interest payments, dividends or royalties arising from this investment. Withholding taxes levied on non-residents amounted to $1.2 billion in 1995-96.Senator Murray raised the issue of transfer pricing in his comments, and Australia's tax law requires that transfer prices for transactions between companies doing business in Australia and related offshore entities are set on an arms-length principle. These provisions seek to ensure that manipulation of transfer prices is not used to shift profits out of Australia and so reduce income tax payable in Australia.Senator Murray asked me to outline some of the government's actions in this area to ensure proper compliance in the payment of taxes. I can advise that, as part of the government's commitment to ensuring that all companies continue to pay their fair share of tax, several measures were announced in the last year or so which further protect Australia's tax base.These measures include: applying the general anti-avoidance provisions of the tax act to counter withholding tax avoidance; tighter residency laws to stop foreign companies claiming tax advantages as dual residents; tighter thin capitalisation rules; measures to stop tax avoidance through tax exempt entities distributing funds offshore; and measures to prevent franking credit trading and dividend streaming.I think I have been able to illustrate to Senator Murray and the Senate that the government has taken steps where steps have to be taken to ensure proper compliance and to counter tax avoidance and aggressive tax planning. I think the government has a very proud record in this area. I have to say that I wish we had received more support from the Labor Party in countering tax avoidance measures.3L6CONROYSenator Conroy—You're not serious?WW4Senator KEMP—Senator Conroy said that I'm not serious. If there's a supplementary I might show you how serious I am, Senator Conroy.2167Murray, Sen AndrewSenator MURRAY3M6WAAD00—Madam President, I ask a supplementary question. Minister, I recognise the efforts made to date, but I wish to ask a supplementary question on priorities or emphasis. Is it not true that if the government gave half the time and resources to pursuing a number of multinational tax cheats that it devoted to pursuing a number of social security cheats, then Australia would have enough money to solve the health crisis and to reduce its social deficit?2167Kemp, Sen RodSenator KEMPWW4VICLPAssistant Treasurer10—I think that question started off pretty well, actually but, unfortunately, as we got to the second and third sentences, it declined quite rapidly. I welcome the acknowledgment you gave to the actions by the government. That is appreciated. That was the good part of your question. Let me refer to the bad part. In relation to all aspects of the law—whether they be social security laws or tax laws—it is appropriate that governments and their agencies do all that is possible to ensure proper compliance. This is precisely what this government does.21672167Faulkner, Sen JohnSenator FAULKNER5K4NSWALP00—My question is directed to Senator Hill as the Minister representing the Prime Minister. Minister, do you recall making the following statement to the Senate regarding former Senator Richardson in 1992:It may not be a question of some financial or pecuniary conflict. This is related to registrable interests, not just pecuniary interests. The statement and the standards that the Prime Minister said he stands by require that Ministers disclose other registrable interests so that the public can see that they are not, in dealing with legislation and Cabinet matters, putting themselves in any potential position of conflict.Minister, do you stand by that view? Minister, don't you agree that if you were to consistently apply the test that you applied to former Senator Richardson in 1992 you would have advised the Prime Minister to terminate Senator Parer's career as a minister?LD4ALSTONSenator Alston—Madam President, on a point of order: in Senator Hill's absence overseas last week, Senator Faulkner asked almost precisely the same question. I therefore ask you whether that doesn't qualify as a classic example of tedious repetition, which clearly demonstrates the bankruptcy of this outfit, which is simply going through the motions.10000PRESIDENTThe PRESIDENT—There is no point of order.2167Hill, Sen RobertSenator HILLBH4SALPEnvironment10—I remember a debate concerning Senator Richardson. It concerned the fact, as I recall, that he was a director of a radio station that was owned by the ALP.O15TIERNEYSenator Tierney—In the Newcastle area.BH4Senator HILL—A business in the Newcastle area—I think Senator Tierney is familiar with it. He was the minister for communications at the time, as I recall. Am I wrong in that? Anyway, as recall it, he was the minister for communications at a time in which decisions were made by him that could be influenced by the radio station's position. We raised that issue, and we were critical of him. As I recall, that was pursued under the senators' interests provisions.UI4RAYSenator Robert Ray—It was not in by then.BH4Senator HILL—I was just wondering that, Senator. It was always so difficult with the ALP because they were reluctant to publish any conditions in relation to conflict of interest. As I recall, Mr Hawke did it at an early stage, but then Mr Keating refused to do it. Presumably Mr Keating refused to do it because of his pig farm interest. So not only was the Labor government under Mr Keating reluctant to disclose the standards but also it thereby put itself in a position where it was difficult to be criticised because it was not prepared to publish the rules.I do recall criticising Senator Richardson for the fact that he did not disclose an interest in that radio station. I thought the criticism at the time was fair and reasonable, and I think it is still the case, and so be it. That was a debate of 1992. If Senator Faulkner is trying to draw some relevance in relation to any matters of current affairs, I can say that under both the senators' interests provisions and the Prime Minister's guidelines, I have not of recent times seen any evidence of conflict of interest.2168Faulkner, Sen JohnSenator FAULKNER5K4NSWALP00—Madam President, I have a supplementary question: Minister, can you inform the Senate whether you think the interests in coal of the minister for coal, Senator Parer, are either registrable interests or pecuniary interests?LD4ALSTONSenator Alston—Madam President, I rise on a point of order. There is no such animal. Therefore, the question has to be out of order.10000PRESIDENTThe PRESIDENT—Senator Faulkner has certainly not referred to the minister in the correct form.LD4ALSTONSenator Alston—How can you answer a question if it is based on a false premise?5K4Senator FAULKNER—Madam President, are you ruling `minister for coal' out of order?10000PRESIDENTThe PRESIDENT—He is not the minister for coal.5K4Senator FAULKNER—Madam President, let me rephrase my question: can you indicate, Minister, whether the Minister for Resources and Energy, Senator Parer, who has very substantial interests in coal in this country, has, in your view, registrable interests or pecuniary interests? Perhaps you can explain whether you have been around to the Prime Minister's office to explain your distinction between pecuniary interests and registrable interests, in particular your view that the crucial element is registrable interests.2168Hill, Sen RobertSenator HILLBH4SALPEnvironment10—I am certainly satisfied that Senator Parer has met all requirements under the Senate registration of interest provisions. There were some technical deficiencies at an early stage that have been overcome. They were explained. They largely arose out of ambiguities within the provisions.5K4FAULKNER Senator Faulkner—Madam President, I rise on a point of order. I asked Senator Hill a direct question about whether in his view the interests of Senator Parer, the minister for resources, are pecuniary interests or registrable interests. I asked him, of course, whether he has been to explain that difference to Mr Howard. Perhaps he can concentrate on the question that has been directed to him. Are they registrable or pecuniary interests? Don't try to duck it.10000PRESIDENTThe PRESIDENT—If it is a legal opinion, you may not ask for the minister to answer it. It there is anything else the minister wishes to add, he may do so.BH4Senator HILL—I was just going to say that the Prime Minister satisfied himself that Senator Parer complied completely with his requirements. On the interpretation we have, it seems a fair and reasonable judgment.21682168Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—My question is to the Minister for the Environment. I refer the minister to the recent announcement that Jandakot Airport Holdings Pty Ltd was a successful tenderer for the lease of Jandakot Airport in the southern suburbs of Perth. I ask: given that Jandakot Airport is situated on the Jandakot water mound, which is an important source of domestic water in Perth, and given the importance of the area for biodiversity, particularly in the form of national estate listed banksia woodlands and wetlands, was the minister consulted during the tender process about the environmental impacts of potential activities of the lessee? If so, what was the nature of the advice? If not, given reports that the successful tenderer is proposing to sand mine the area and also use parts of the hill for landfill, will the minister undertake to conduct an environmental assessment of any proposed commercial activities to be undertaken by the lessee?2169Hill, Sen RobertSenator HILLBH4SALPEnvironment10—It is true that the government has recently announced that the successful bidder for the long-term lease of Jandakot Airport is Jandakot Airport Holdings, which is a 100 per cent Perth-owned entity comprising three local companies—Soils Ain't Soils, Level Holdings and CGA Services. The bids for the airport were assessed against a range of sales and ongoing regulatory objectives. It was not solely price driven. We closely looked at management capability, financial strength, environment, development and maintenance plans for the airport, treatment of FAC staff and the level of local involvement.I am advised that, in the bid assessment, particular attention was given to the sensitive environmental issues at the airport. As part of their bids, the bidders were required to provide extensive details of their environmental management plans for the airport, including strategies for preventing, controlling and reducing environmental impacts. It was a key evaluation criteria.Once the airport is leased, the airport will become subject to the requirements of the Airports Act 1996, which sets out a comprehensive regulatory regime for the airport. The act provides that the airport lessee must, within the first 12 months of taking up the lease, submit for ministerial approval an environmental strategy which details how the airport will be operated so that its environ mental health is maintained and improved. The strategy must go out for public comment for at least 90 days prior to being submitted and must reflect how it addresses the public comments raised.Once the environmental strategy is approved, the act obliges the airport operator to ensure that it is complied with. The act and regulations set stringent standards and impose duties in relation to environmental pollution with heavy penalties for offences, and the Commonwealth will have an airport environment officer at the airport to apply and enforce the standards and penalties under the Airports Act. Additionally, the airport, as a Commonwealth place, will continue to be subject to the full range of Commonwealth laws such as the requirements of the Environment Protection (Impact of Proposals) Act, the Endangered Species Protection Act and the Aboriginal and Torres Strait Islander Heritage Protection Act.If it is intended, as I gather it is, that there will be major developments for the airport, they will require approval under the Airports Act. I have been advised by my colleague the minister for transport that major development proposals of environmental significance will be referred for consideration under the EP(IP) Act.2169Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Madam President, I ask a supplementary question. So we will look forward to some kind of assessment that we can read. The minister mentioned that one of the major investors in the company that was awarded the Jandakot Airport lease was the well-know soil blending company Soils Ain't Soils, which had been convicted of operating without the necessary permit from the City of Cockburn. It continued to operate in defiance of instructions that it cease operations. The same company stockpiled 30,000 cubic metres of sewage sludge near a water authority bore on the Jandakot mound in 1995 without seeking any authority to do so. Given this record, does the minister not agree that there is substantial ground for investigating by his department of the proposed activities of the new lessee of the Jandakot Airport to ensure that the important biodiversity values and the critical water resource is not adversely impacted?2170Hill, Sen RobertSenator HILLBH4SALPEnvironment10—I indicated that one of the companies comprising the successful tender was a company called Soils Ain't Soils, so there is no surprise in that. But what I have sought to point out to the honourable senator is the extensive environmental requirements that will be imposed upon the lessee under the terms of the Airports Act. That I think can give the honourable senator considerable assurance that her concerns are misplaced. In addition to that I also said that, if there is any specific significant development or development that has a significant environmental effect, it then runs into the provisions of the Commonwealth EP(IP) Act as well and I will receive advice in due course of appropriate assessment. I do not know about the matters of history to which the honourable senator alludes, but I can tell her from the perspective of the future that the environmental values will be well protected. (Time expired)21702170Cook, Sen PeterSenator COOKRF4WAALP00—My question is to the Minister for Resources and Energy. Minister, I refer to your answer yesterday to a dorothy dixer from Senator Sandy Macdonald proclaiming the government's commitment to alternative energy sources. Are you aware of a letter from the Liberal member for Gilmore, Joanna Gash, to you dated 13 August 1996 protesting strongly at the proposal to scrap the bounty for ethanol as an alternative fuel source? Didn't Mrs Gash ask, `The least you can do is honour the agreements of the previous government. Would you renege on a contract?' And later, `There are too many arguments against what you are proposing for it to be politically or morally acceptable'? Doesn't this protest from one of the government's own backbenchers demonstrate your own lack of credibility on any issue of renewable energy sources?2170Parer, Sen WarwickSenator PARERKI4QLDLPResources and Energy10—This was canvassed—obviously, Senator Cook was not listening—two years ago after the first budget decision, which I might say was a cabinet decision of the government, bearing in mind that we were confronting a $10.5 billion deficit bequeathed to us by the previous government. So difficult decisions had to be made. This was pursued at great length in estimates committee following that budget. I think it was Senator Woodley who pursued it—it was certainly one of the Democrats.When the government came in it got the whole business of the ethanol bounty reviewed by the department. I think I am correct in saying that it was an interdepartmental committee, but it was two years ago anyway. Quite conclusively, on the advice given to us at the time, this could not be recommended to continue. Also my understanding at the time when it was introduced was that it is was a deal made between the Labor Party and the Democrats to get a budget through. That was always my understanding.The ethanol bounty was being given to two companies. One was a company in Queensland that had been producing ethanol since I think about 1928, so they thought Father Christmas had come when you introduced that. The other company was at Manildra. It was pursued, as I said, at great length. The purpose of the ethanol bounty was for the mixture of ethanol with petrol. This mix was being used by certain independent companies, mainly in the state of New South Wales. On all the evidence given to me—independently, I might say—by the department, the recommendation was that, in view of the stringent budget circumstances of the time and in addressing the budget deficit, it could not be justified to be continued.2170Cook, Sen PeterSenator COOKRF4WAALP00—Madam President, I ask a supplementary question. You said was the question was taken by the cabinet. Are you distancing yourself from that decision? Did not Mrs Gash's letter also state that it has taken years to gain credibility with the community and, `To forsake this for one year of a bounty—when it appears that assurances were given by the Prime Minister to the constituent on this issue—would wound the standing of myself, the Prime Minister and the government'? Minister, isn't the Liberal member for Gilmore correct on that point?2170Parer, Sen WarwickSenator PARERKI4QLDLPResources and Energy10—I was not distancing myself from the decision at all and I did not indicate that I was, Senator. I think you just made that up or, alternatively—RF4COOKSenator Cook—Read the Hansard . You said it was a decision of cabinet, not yours.KI4Senator PARER—Well it was a decision of cabinet, but if you look back at when the decision was made, I certainly did not distance myself from it. I would like to commend Mrs Gash because, unlike the Labor Party on the other side, she was representing a constituency and it is her right to do so.21712171Calvert, Sen PaulSenator CALVERT5F4TASLP10—My question is to the Minister for Schools, Vocational Education and Training. Minister, the education unions have been distributing misleading material regarding Commonwealth schools funding. Naturally, the ALP has also joined in and made misleading comments about school funding. Would you, Minister, outline where the ALP and others are wrong and inform the Senate as to what the true position is on the coalition's substantial funding to schools?2171Ellison, Sen ChrisSenator ELLISON9X5WALPSchools, Vocational Education and Training10—I thank Senator Calvert for that very good question. There has been a concerted effort by the opposition and the Australian Education Union in a campaign which is most misleading in that it is saying we are drawing funds from the government sector to give to the non-government sector and that we are reducing funding for government schools. Let us put the record straight. Compared with the last year of Labor in power, we have increased funding for government schools to the extent of $127 million. Compared with 1996, that is $127 million more in 1998.AW5CARRSenator Carr—Is this real prices or—10000PRESIDENTThe PRESIDENT—Order! Senator Carr, I ask you to cease interjecting. There is an appropriate time for you to debate this issue, and that is later in the day.AW5CARRSenator Carr—Madam President, I raise a point of order. I believe that the minister ought not mislead the Senate by presenting figures which are false and misleading.10000PRESIDENTThe PRESIDENT—Senator Carr, there is no point of order. That is a debating matter that you can take up at the appropriate time. You are in breach of the standing orders.9X5Senator ELLISON—Senator Carr well knows that this involves actual expenditure—dollars and cents. It is an increase which in 1999 will involve $146 million more than in the last year of Labor. In the year 2000 it will involve $169 million more than in the last year of Labor. That is all for government schooling. In fact, this campaign is evident in an article entitled `The class divide' in the Herald Sun today, which plays upon the difference between the government and the non-government sector. That article also gets it wrong, because it says that our funding for the government sector is $1.2 billion. This underestimates our expenditure by $300 million. That is just a campaign to mislead and cause alarm in the community.But let us look at what Labor did. Apart from spending less on education, Labor failed to tackle the real issues. It had a new schools policy which stunted the choice available to parents as to where they could send their children. We have abolished that and opened up the opportunity for non-government schools. We allowed choice for the parents of Australia as to where they sent their children. We brought in a program for increasing literacy, which the previous government ignored. We also brought in a civics campaign to deal with Australian citizenship and how our students understood that.What does Mark Latham, who is the member for Werriwa and the opposition spokesman for education, say in his book? In looking at human capital, which involves the education of the next generation, he said:Education resources need to be devoted to the competence, skills and personal development of citizens, rather than simply substituting for the short-term training costs of industry.We have done that. We have looked at things like literacy for personal development of our students. We have looked at the civics which deal with the citizenship that he talks about. We have looked at vocational educational programs in our schools which deal with the skills and development of our students. We have dealt with that. But when you look at his book and go further, where does he deal with it? He doesn't. That is all he says about education, and it is baseless rhetoric. Where is the policy that this opposition has in relation to the specifics which are going to advance the next generation of Australians? When you look at this book written by the shadow minister for education, that is all you get on education. There is nothing about the specifics which are going to advance Australian students.Not only have we spent more money on education but we have also targeted the specifics that will advance the skills much needed for the next generation to get jobs. We have targeted things like literacy. We have taken on those hard issues which Labor failed to do. But what is more important is that we have given the parents of Australia a choice, which the opposition never did. It stunted that choice with its new schools policy, and we abolished it.21722172Conroy, Sen StephenSenator CONROY3L6VICALP00—My question is directed to the Assistant Treasurer. Minister, can you confirm that the concept of notional dividends does not exist in the tax act? Can you therefore explain how it would be possible for a company to declare notional dividends on shares that do not exist and then classify these dividends as loans to shareholders? Will the government seek to outlaw such practices, given that they are nothing more than an attempt to disguise dividends as loans, hence avoiding tax?Government senators interjecting—10000PRESIDENTThe PRESIDENT—Order! Senators on my right will cease interjecting.2172Kemp, Sen RodSenator KEMPWW4VICLPAssistant Treasurer10—Senator Conroy has raised an issue, I suspect, regarding section 108 of the tax act. Is that correct, Senator Conroy?Senator Conroy interjecting—WW4Senator KEMP—Oh dear. We have a problem here. Senator Conroy asked a technical question and I needed to get more specific guidance; I regret to say that he has not given that guidance. Senator Conroy, I think it is probably better if you put the question on notice and then we can actually look at it closely to see precisely what you are driving at.2172Conroy, Sen StephenSenator CONROY3L6VICALP00—Madam President, I ask a supplementary question. Is the minister aware that the $2 million minister for resources including coal, Senator Parer, approved such a tax avoidance scheme when he was chairman of QCMM Pty Ltd? Was the minister for resources and coal consulted about this change, given that he has so much first-hand experience regarding tax avoidance schemes?2172Kemp, Sen RodSenator KEMPWW4VICLPAssistant Treasurer10—Well, Senator Conroy certainly goofed on the first part of his question and now he has goofed on the second part. What you have taken to the habit of doing, Senator Conroy, is slurring people constantly in this chamber. I advised you yesterday, Senator Conroy, that if you want to insult people in this chamber, if you wish to demean them and claim that they are tax avoiders, the easiest thing for you to do is to apply what we used to refer to in this chamber as Robert Ray rules. If you all remember, Robert Ray rules were—UNKNOWNGovernment senatorsGovernment senators—Step outside.WW4Senator KEMP—Ten yards to courage, Senator Conroy.Senator Robert Ray interjecting—WW4Senator KEMP—Don't shout, Robert Ray. That was your principle when you were in government. What I suggested to Senator Conroy yesterday, and what I suggest to Senator Conroy today, is that if he wants to defame the senator, do it outside and show a bit of courage for a change. (Time expired) .BH4HILLSenator Hill—Madam President, I ask that further questions be placed on the Notice Paper .Miscellaneous2172217215:00:002172Vanstone, Sen AmandaSenator VANSTONE7E4SALPMinister for Justice10—Madam President, during question time Senator Coonan asked me a question. I have some further information for her in the form of three letters that I seek to incorporate in Hansard . 10000PRESIDENTThe PRESIDENT—Is leave granted?UI4RAYSenator Robert Ray—Have we seen them?7E4Vanstone, Sen AmandaSenator VANSTONE—No. I am giving them as an additional answer and incorporating them in Hansard , like I do with any other.UI4RAYSenator Robert Ray—You do that the next day. Leave is not granted. You know better than that.10000PRESIDENTThe PRESIDENT—Order! Leave has been refused. You can table the letters as of right. You need to have leave to incorporate them in Hansard .7E4Vanstone, Sen AmandaSenator VANSTONE—I table the letters, Madam President.217315:01:002173Newman, Sen JocelynSenator NEWMANBE4TASLPSocial Security10—Madam President, I table the second quarterly report of the fraud and compliance activity in Centrelink. I have some information that was supplied by Centrelink in response to Senator Crowley about the appointment of an extra person in the communications team. The advice I have received is as follows. Centrelink has appointed an additional officer to the youth and students team in the communication section. This is in response to the extra workload created in the lead-up to the implementation of the youth allowance on 1 July. It is common practice to supplement resources on such a large project as this. The contractor has been appointed to assist Centrelink for a fixed period and reports directly to Centrelink management, not to my office. The contractor in question was recruited by Centrelink under normal recruiting practices.217315:02:002173Herron, Sen JohnSenator HERRONVW4QLDLPAboriginal and Torres Strait Islander Affairs10—Madam President, I seek leave to correct an answer that I gave to Senator Lees yesterday in questions without notice.Leave granted.VW4Herron, Sen JohnSenator HERRON—Yesterday I said that the Commonwealth offer was $83 million for every two per cent that dropped out of private health insurance. In fact it is one per cent.217315:02:002173Alston, Sen RichardSenator ALSTONLD4VICLPCommunications, the Information Economy and the Arts10—Madam President, yesterday I was asked a question by Senator Mackay regarding Telstra jobs in Tasmania. I table a statement containing additional information in relation to that matter.217315:03:002173Alston, Sen RichardSenator ALSTONLD4VICLPCommunications, the Information Economy and the Arts10—Last week I was asked a question by Senator Harradine regarding Telstra's message bank service. I table a statement containing additional information in relation to that matter.Miscellaneous21732173The PRESIDENTThe PRESIDENT10000PON/A10—Further to my statement yesterday about proposed questions on notice lodged by Senator Colston, I now table the advice I received from counsel on the questions. Material which summarises the content of the questions has been deleted from the advice. I also include in Hansard a letter from the Clerk of the Senate relating to allegations made by Senator Colston in the Senate yesterday.The letter read as follows—7 April 1998Senator the Hon Margaret ReidPresident of the SenateParliament HouseCANBERRA ACT 2600Madam PresidentALLEGATIONS BY SENATOR COLSTONDuring the adjournment debate in the Senate yesterday Senator Colston made allegations against me and other Senate officers of serious criminal offences in connection with the proceedings which have been initiated against him by the Director of Public Prosecutions.If Senator Colston has any evidence of such serious criminal offences he should lay it before the Australian Federal Police so that his allegations can be investigated.Alternatively, if these allegations constitute part of his defence to the criminal charges which have been laid against him, he should place them before the court where they can be tested and submitted to the judgment of the court. That is the appropriate place for him to make his defence.I am constrained in making any further comment on his allegations by the same consideration on which you have restrained him in the Senate, namely, that nothing should be said which could cause prejudice to the proceedings against him.I ask that this letter be tabled in the Senate.signedHarry EvansMiscellaneous2174217415:04:002174Carr, Sen KimSenator CARRAW5VICALP00—I move:That the Senate take note of the answers given by the Minister for Social Security (Senator Newman), to questions without notice asked by Senators Crowley and Evans today, relating to the government's media strategy for the common youth allowance.Madam President, today the Minister for Social Security (Senator Newman) indicated to the Senate, in response to questions from Senator Crowley, that she had her own staff monitoring the media and that these staff were doing a very effective job. She was then obliged to come into the Senate after question time and correct that answer because it is her own media strategy, produced by Therese Wheatley of the youth and student communications team on 25 March 1998, which highlights quite the contrary.The recommendation that the minister has in fact received is that Centrelink will provide a dedicated officer to monitor media to advise the minister's office of appropriate responses. They will include liaising with program producers, writing letters to the editor and generally assisting the minister's media adviser. The officer will also be responsible for developing a regional media strategy.Why is this necessary? It is necessary because, contrary to the minister's position put to the Senate, she does not have effective staff to deal with this issue. She is not effective in her capacity to deal with the media on this issue; hence the need for a sophisticated media manipulation exercise to be conducted by the department through, it is proposed, a PR company.This document reflects the government's own failure. It reflects the advice given to the government that they have a program that has in fact failed. It has failed because the key issues in this area have been highlighted in public debate through the contributions to the political process in this Senate by members of the opposition and members of the Democrats and, of course, by the Labor Party's shadow minister, Jenny Macklin. The minister has been advised by her department that there is a need to respond to these criticisms. They have failed to respond to the issue that their policy is a failure. The document says:There has been vocal opposition to the introduction of the Youth Allowance from various interest groups. Predictably welfare groups such as ACOSS . . . NUS—and various other welfare organisations. It goes on to say:However, opposition has also come from church groups and organisations with religious affiliations such as Centrecare. Vocal opposition for religious groups are a concern for the successful introduction of this initiative as they will have credibility with middle Australia as well as those families affected by the Parental Income Test.This government is now seeking to have advice prepared by public servants who are dedicated to media manipulation. It is unprecedented in the way in which governments operate for it to be suggested in official departmental advice that strategies should be produced and that ambassadors should be appointed who can match the complaints highlighting the inadequacies of this government's programs that have been put forward by the public and by a wide range of community groups. To suggest that ambassadors should be appointed from this lot over here to try to answer these criticisms in itself is a joke.The real problem is that here they have a public servant who, frankly, is being asked to do a job that they are not up to. What do you expect the public servant to do? You cannot have a politicised public service. You cannot have public servants being required to undertake these tasks, obviously directed by the government. Is it not surprising that public servants, when required to produce policy positions on media manipulation, should fail so miserably?The document lists a number of initiatives that this government has taken, a number of negative aspects, as it says. With regard to unemployment, it says that over 18s will still be financially dependent upon their families; the youth allowance will cause more family disputes and encourage family breakdown; the youth allowance will cause young people to leave home and leave the security of family support; the youth allowance will cause more youth homelessness.The youth allowance will produce a situation where people acknowledge that $23,000 a year is the family income. Under this proposal you will see money being taken away from Australians. All of this is identified in the document. But that is not all, and this is where the document fails. It fails to point out a whole range of other measures. And what do you expect? As I say, you cannot ask a public servant to undertake a political function like media manipulation which is the province of experts. We have Mr O'Leary in the Prime Minister's office—(Time expired)AW5CARRSenator Carr—I seek leave to table the document. I have already approached the whip on such a matter.10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Is leave granted?LD4ALSTONSenator Alston—No, leave is not granted. It has been made perfectly clear that this is stolen property, and we are not going to cooperate with such an exercise.15:09:002175Tierney, Sen JohnSenator TIERNEYO15NSWLP10—It is absolutely amazing that Senator Carr would ask leave for the tabling of a document which he has not shown. I asked a similar thing of Senator Carr last week, with regard to a very innocuous sort of document. `Oh no,' he said, `I can't agree to that until I see it.' That is exactly what you said and it is in the Hansard record.AW5CARRSenator Carr—Madam Deputy President, I raise a point of order. Before I sought leave I showed the document to the government whip and the government whip agreed to it being tabled. That is a complete misrepresentation.10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Order! There is no point of order.LD4ALSTONSenator Alston—I take a point of order to explain the circumstances. What Senator Carr did not disclose to our whip was what he has disclosed in his last period of ranting—that is, that this was an official government document.AW5CARRSenator Carr—I told him it was an official document. I had shown it to him with a signature.LD4ALSTONSenator Alston—I am terribly sorry but we are not prepared to cooperate with those sorts of sleazy exercises.AW5CARRSenator Carr—Then tell the truth.10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Order! There is no point of order on either point.O15Tierney, Sen JohnSenator TIERNEY—What we have here today is a consideration of the common youth allowance and, as usual, the way in which the ALP has entered this debate is to take a minor point to do with the media to complete a sledging of the Minister for Social Security (Senator Newman) related to this, and missing the main points of importance of this change of policy from the failed policies of the previous Labor government.I took a particular interest in this matter because a few years ago we were looking at this whole issue—the way in which we treat youth between full-time education and full-time employment, and the way in which they should be supported. In 1992, the Senate Employment, Education and Training Committee brought down a unanimous report entitled Wanted: our future, which was about youth unemployment. It took the previous government, those opposite, three years to respond to that report. That is how concerned they were about youth. That is how concerned they were about the allowance system for youth at that time—it took them three years to respond.9L6MACKAYSenator Mackay—You won't come to our regional unemployment inquiry.O15Tierney, Sen JohnSenator TIERNEY—Let me remind Senator Mackay when that was—1992, in the depths of the great recession caused by your leader, Paul Keating. It had a devastating effect on youth; there were youth unemployment rates of over 30 per cent. It took you three years to respond to that report.Let us go on a few years to the time when we brought down another report, on Austudy. This occurred after a report from the ombudsman which showed 24 major problems with the administration of youth allowances under your government. We then had a Senate inquiry into it and we made 24 recommendations. And how long did it take you to respond to that one? I think we had got into government and you had not even bothered to respond to it.So you come in here and have the hide to criticise our system, which is based on a lot of that evidence that was put before the committee regarding the way in which we should change the system for youth who are unemployed, who go into some sort of training, who move between the training system, unemployment and back again. They were heavily penalised under the last Labor government. We have fixed up a lot of measures in that system.For example, the system required that people be asked to repay or make adjustments to their benefits where their circumstances changed. These people may have been in very poor circumstances and they may not have had the ability to repay all the money in three months. I had a case several weeks ago involving someone who was asked to repay everything that was accidentally paid to her—it was not her fault—and this was actually done, and the adjustment made.We have made a number of adjustments since we had that system. What we have done in recent times is to improve the eligibility criteria for people by bringing in a means test. Under the Labor government, people could artificially reduce their income for taxable purposes—what they declared—and those people could then claim Austudy and other benefits. We have taken that away. We are creating a seamless web between the old Austudy system and the old unemployment benefits system, so that youth in this country get much better support. When they move between different types of arrangements in terms of their education, their training and work, they will get much better support.Payments under the system for 358,000 will remain unchanged; payments for 153,000 will increase; and only 33,000 will have their payments reduced. That is because of parental income. This is a much more integrated and fairer system. Given Labor's terrible track record over 13 years on this matter, they have got an absolute hide to get up and mention this today. (Time expired)15:15:002176Crowley, Sen RosemarySenator CROWLEYZF4SAALP00—I note that Senator Alston has not left the chamber. He referred to the document that I wish to speak to as a stolen document. He did modify his language later. I point out to Senator Alston as he leaves the chamber that it is not a stolen document. Whistleblowers in the department have provided this document to the opposition because they are so outraged at the wrong use of policy for families in this country and so outraged at the wrong use of taxpayers' dollars.You know the distinction. You have to be very careful do you not, Senator Hill, as you discovered at question time today? What is interesting about this document? Senator Newman said that she did not know of such a document. It is terribly interesting that the points she made in answering the question she was asked today are exactly the ones that are listed on this document. The document states:KEY MESSAGESWe need an agreed set of key messages that are used in all forms of communications when speaking on Youth Allowance.Senator Carr has already pointed out what a terrible problem, what awful challenges and what negative messages the youth allowance is going to pose for you. These are the agreed messages that the Minister for Social Security ran through so well today. I think I will leave it to her to tell you about them. The key messages listed in this document are:. Youth Allowance is just one of many tools the government is using to try to fix . . .. Instead of relegating young people to a life of long-term unemployment . . . . Youth Allowance is about preventing long-term employment.. Youth Allowance encouraging under 18s to get the skills . . . It is exactly word for word, line for line what the minister used today. There must be a number of documents circulating in the department. There is certainly this one and the minister is using it in her brief. It goes on to say:MEDIA OPPORTUNITIESWe have identified several media and publicity opportunities for the Minister, DSS and Centrelink.Minister's Office. Identify media opportunities in visits in regional areas where the Minister can meet with young people in Centrelink Youth Service Units or other local youth support services.. Identify young MPs and Senators who can act as Youth Allowance ambassadors.I am not sure that when Senator Newman included all of you as youth ambassadors that she had that quite right. We could argue it.LI4PATTERSONSenator Patterson—Don't be ageist; don't be so ageist.ZF4Crowley, Sen RosemarySenator CROWLEY—I am not being ageist, Senator, it is your document. The document goes on to state:. . . to try to counteract negative publicity being spread by Natasha Stott Despoja and Jenny Macklin.What a powerful couple they are. How well is this Labor opposition doing that without too much trouble at all. The negatives of this dreadful policy are so far out there that you have already identified a departmental document signed by Therese Wheatley of the Youth and Student Communication Team on 25 March 1998.Further to the question I asked, the minister stood up after question time and said that she had been advised that Centrelink had provided a dedicated officer to monitor the media. She said that that officer was appointed in the usual way and would be doing what Centrelink officers have to do. This document says:. . . advise the Minister's Office of appropriate responses. This will include liaising with program producers . . . and generally assisting the Minister's media adviser. It is quite clearly beyond the pale that taxpayers' dollars and departmental work should be devoted to trying to counteract the government's own program. It is one thing to say that we have to run a campaign against dreadful Labor government policies but this is actually a campaign to sell their own policy. It lists in detail the dreadful things about your policy. It states:. Unemployed over 18s will still be financially dependant on their families until they are 21.. YA will cause more youth homelessness.Youth allowance payments will start cutting out with family incomes of $23,000. It will amount to $55 a week for families by the time their family income is $35,000.This is going to hurt families. It is going to anger, upset and hurt young people. It is going to do nothing to make them feel comfortable and relaxed. It is the policy of a mean spirited, limited spirited, nasty government—so mean, so nasty that it has to devise its own strategy to counter its own policy. It says something for the kind of care you have got for the people of this country. The families of Australia are just busting for the opportunity at the next election to tell you what they think of them. This is an excellent document telling me about how disgraceful your policy is and confirming your doubts and concerns about it.15:20:002177Coonan, Sen HelenSenator COONAN2M6NSWLP10—I must say that I am out and proud to be an ambassador for youth and an ambassador for the youth allowance. I cannot really understand what it is that is exciting those on the other side about a leaked document which simply refers to ways in which this excellent policy can be promoted.AW5CARRSenator Carr—How you can manipulate the media; you ought to know.2M6Coonan, Sen HelenSenator COONAN—One also must say that you would have had to have been asleep if you had not seen the many Labor Party advertisements promoting its policies in the past. It is the height of hypocrisy to actually come in here and create a fuss about something that is actually quite defensible.The youth allowance is a credible policy that deserves to be properly evaluated and certainly it is a scheme worthy of support. Few people would argue with the need for young people to receive as much education and training as is possible to maximise their opportunity for employment.AW5CARRSenator Carr—The only jobs you are interested in are your own.2M6Coonan, Sen HelenSenator COONAN—Just because those sitting opposite yell and scream and try to cast aspersions on this policy that actually tries to do something does them absolutely no credit at all.AW5CARRSenator Carr—You have been caught.2M6Coonan, Sen HelenSenator COONAN—The fundamental underlying point about the youth allowance, Senator Carr—because you do not seem to understand it—is that it will encourage as many young people as possible to remain in or to return to education and training. That in itself is not only entirely defensible but also pretty sensible. Why are you opposing it? Why are you so upset about it? Why are you so upset about the fact that this government has actually sought to target where the real problems are with young people and unemployment?It will encourage as many young people as possible to remain in education. It is a simplified income support system, instead of the multifarious confusing way in which your policies operated and provided very little support. They certainly blew out the budget deficit to something pretty unacceptable. It will also provide flexibility to cater for the variety of circumstances in which young people find themselves in in the transition from school, hopefully to work.Because nobody over there seems to understand what on earth this policy is about, let me just remind you that the numbers likely to return to school or training could increase with this policy to around 27,000 by the year 2000. Around 37 per cent, that is 11,900, are likely to return to school and five per cent, that is 1,500, to vocational education and training. What is the problem with that? What exactly is wrong with policies which actually promote this sort of assistance for young people? Around 48 per cent or 15,400 would obtain an exemption from the undertaking to return to full-time education or training or to be undertaking training. There is a deferment of the under 18s requirement and there is an additional special needs package.On 28 January, the government announced a deferment until January next year of the requirement for under 18s to be in full-time education and training to qualify. Also, $4 million to $6 million of an extra assistance package will be provided over the next three years to meet the special needs of those remaining in full-time education and training. It includes full service schools for students at risk.AW5CARRSenator Carr—It is $100 million short.2M6Coonan, Sen HelenSenator COONAN—Senator Carr, you cannot make up your mind whether you like this policy or you don't. On the one hand, you seem to be critical of it. On the other hand, you seem to be saying that it does not have enough money. Which is it? The actual means test will create greater equity in assessing families. It will apply as part of the parental means test with the focus on parental means test but not apply to independent recipients. That is the same approach as for Austudy. Do you recognise it?AW5CARRSenator Carr—You have to be 25.2M6Coonan, Sen HelenSenator COONAN—That is what you did, Senator Carr. There have been cases where families with low taxable income, because of the way their finances are arranged, actually have much higher income and where means need to be assessed accordingly. (Time expired)15:25:002178Mackay, Sen SueSenator MACKAY9L6TASALP00—Can you just imagine what is happening in Senator Newman's office at the moment? The phones will be running hot to Centrelink. Who leaked the document? How many public servants will get the flick because of this? The last time there was a major leak like this they abolished the Department of Administrative Services. Will we see the demise of Centrelink as a result of this? That is the big question. Seriously, this is the day when the youth unemployment figures come out. What were the youth unemployment figures today? They were 28.7 per cent youth unemployment. What is that?—2.3 per cent higher than when this government came into office.YW4MACDONALDSenator Ian Macdonald—Well down from Labor.9L6Mackay, Sen SueSenator MACKAY—It is 2.3 per cent higher than when this government came into office. That is an absolute disgrace. Senator Newman who is no doubt making phone calls to some poor unfortunate in Centrelink, leaving abusive messages on answering machines as she is wont to do, as Senator O'Brien knows in terms of her home state of Tasmania. Didn't she give herself away today when she used the term the `cleansing of the social security system'? Wasn't that a dead give-away? That was an absolute give-away. I actually find that term `cleansing of the social security system' completely offensive. I have to say that it is an absolute disgrace that a minister of the crown uses a term like that.Let us go to the proposed activities that are indicated in this document. Because the government will not let us table it, we have to illuminate the Senate as to the content of the document. Proposed activities are:Engage market research agency to undertake developmental research, benchmarking, and testing of promotional concepts and communication toolsPublic money spent.Engage ad agency to develop imagery for use with all products (magazine guide, posters, display material, outdoor bus advertising—I think Max Moore-Wilton will be probably interested in that one—brochures, kit folders, McDonalds placements) and develop ads for television, radio and print media campaignTaxpayers' money.Engage PR company for issues management for passage of legislation and media strategy development and implementation post legislationTaxpayers' money.Prepare video for distribution to network and to community organisationsTaxpayers' money. It goes on:Organise spots for SBS radio over a four month periodTaxpayers' money.Organise spots on ATSI radio over a four month periodTaxpayers' money.Mainstream youth radio will be covered by ad agency media buyHow much is that going to cost in terms of taxpayers' money? This is a beauty. This is the best bit. This is the most outrageous bit:Negotiate with television producers to include a storyline on a television show like Home and Away or NeighboursWhen was the last time that type of propaganda was put out? That is an outrage. So this government is going to spend taxpayers' money negotiating with the producers of Home and Away and Neighbours to try to get their spin into what is a mainstream youth program. That is outrageous. The taxpayers will be paying for it.AW5CARRSenator Carr—What about letters to the editor?9L6Mackay, Sen SueSenator MACKAY—That is right, and letters to the editor. The last is:Book McDonalds' placements for 1999The mind boggles. What are we going to have? Free give-aways every time you buy a Big Mac. Outrageous! This is outrageous stuff. One of the things I found most interesting is the target audience, which you will find in the middle of the document. This is astounding. The target audience includes students aged between 18 and 24; unemployed people aged 18 and 21; parents; community organisations—all the people the government does not like.AW5CARRSenator Carr—Voters in marginal seats.9L6Mackay, Sen SueSenator MACKAY—Voters in marginal seats; schools/tertiary institutions; government—government is a target audience—the general community; and Centrelink network staff. Centrelink network staff is in fact a target.To conclude, this government is not satisfied with spending $750,000 worth of taxpayers' money on the coalition backbench secretariat. Not enough, thank you. Those of us who have been involved in campaigning know that this is worth a bundle to somebody. This is worth a bundle of taxpayers' money.AW5CARRSenator Carr—Another consultancy.9L6Mackay, Sen SueSenator MACKAY—Another bundle of consultancies, Senator Carr, not just one. This is an absolute outrage. The taxpayers of Australia are paying for the fact that you people have failed to convince them that your policy is correct. (Time expired)15:30:002180Ferris, Sen JeannieSenator FERRIS5L6SALP10—We have heard some amazing comments in here today from those on the other side during this motion to take note of answers by Senator Newman. The most amazing comment has come from Senator Carr, sitting over there in a glasshouse, as a member of a party which spent more than $1 million every year on aNiMaLs. If we are talking media manipulation, that was a class act, Senator Carr. aNiMaLs was a class act. We heard Senator Crowley's reference—I am sure her tongue ran away with her—to Labor's terrible policies. Well, she certainly got that right. Hundreds of thousands of Australians agreed with her at the last election and threw her out. Everybody knows that the reason this issue has been raised this afternoon is to provide a smokescreen from the real story. Everybody knows the details of the youth allowance and knows that the youth allowance will encourage young people to complete or further their education by removing undesirable incentives to leave education early or to choose unemployment over education and training.But the real story here today, and the reason the smokescreen has been provided, is that Senator Newman has announced today the new figures on welfare fraud. Poor Senator Mackay, `Tut, tut'—I wish Senator Mackay was still here. She expressed some concern about the use of the word `cleansing'. Well, dear me! Could it be that Senator Mackay supports welfare fraud? Does Senator Mackay actually support welfare payments going to people who do not deserve to have those payments made?LI4PATTERSONSenator Patterson—They must have; they did it for years.5L6Ferris, Sen JeannieSenator FERRIS—Sadly, Senator Mackay is no longer in the chamber so we are not able to ask her. Let us have a look at what Senator Newman was able to announce today as a result of a more effective examination of the payments that have been made to welfare recipients in this country. I am reminded of the comments that were made a couple of years ago by the previous minister, Mr Baldwin, when he said how effective the previous government was in looking after welfare payments and leading the world—I believe he used the words `world's best practice'—in determining that welfare fraud was kept to a minimum in this country. Let us have a look at what Senator Newman has announced today: since July 1996, $600 million—or $1.1 million every day—has been recovered from welfare fraud by taxpayers.AW5CARRSenator Carr—Tell us about the Wright family again.5L6Ferris, Sen JeannieSenator FERRIS—Sadly, Senator Carr, you are in the wrong family and, increasingly, Victorians agree. These new figures, released today by Senator Newman, represent an increase of 76 per cent over the amount recovered for the 18 months to December 1995 when Labor was still in government—76 per cent for the 18 months leading up to the election and to the rejection of the previous government. There is no doubt that this policy is receiving widespread community support. If you have a look at the measure of that community support, Senator Newman announced today that there were 27,000 tip-offs between July and December last year—in six months, 27,000 tip-offs. These resulted in payments being curtailed, cancelled or reduced to 7,400 people. This is the real story today—not the story of a truck that backed up to the back door of some Labor member's office and unloaded a stolen document.Senator Newman deserves to be congratulated for saving the Australian taxpayers $1.1 million every day in welfare fraud. What a tragedy it is that those on the other side cannot be bothered to acknowledge that the taxpayers of this country will benefit from that significantly every day—not just today; not just yesterday, but every day—$1.1 million saved by the taxpayer in welfare fraud. Senator Carr, your government ought to be ashamed of itself.AW5CARRSenator Carr—We're not in government.5L6Ferris, Sen JeannieSenator FERRIS—You allowed welfare fraud to continue unabated in this country.10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Order! The time for the debate has expired.Question resolved in the affirmative.Personal Explanations218115:35:002181Patterson, Sen KaySenator PATTERSONLI4VICLP10—Madam Deputy President, I seek leave to make a personal explanation.10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Do you claim to have been misrepresented?LI4Patterson, Sen KaySenator PATTERSON—No. I wish to correct something on the record.Leave granted.LI4Patterson, Sen KaySenator PATTERSON—During the debate on the Taxation Laws Amendment (Trust Loss and Other Deductions) Bill 1997 , senators who had trusts stood and indicated the case. In the last discussion I had with my father regarding his assets, he indicated to me that he was anticipating setting up a trust. I said that I did not know whether I would be a beneficiary of that trust, but, in order not to mislead the Senate and to be as careful as possible, I indicated that he had a trust, since that was his intention the last time we had discussed it. He has been away on holidays and I have only just been able to contact him. He advised me that, for a number of reasons, he decided not to set up a family trust. So there was no conflict, but I gave information that I thought to be true when in fact it was not.218110001CLERK ASSISTANTThe Clerk—Petitions have been lodged for presentation as follows:2181471TW4Bourne Sen VickiTo the Honourable the President and Members of the Senate in the Parliament assembled.The Petition of the undersigned draws to the attention of the Senate, the deleterious effects of the Multilateral Agreement on Investment.Your petitioners ask the Senate to call on the Australian Government to:1. Make available the draft text of the Agreement2. Make a public statement about its intentions with regard to the signing of the MAI, detailing the beneficiaries of the Agreement, and accountability measures for all corporations 3. Not sign the MAI unless substantial amendment is made, including the observance of international agreements including environment, labour, health and safety and human rights standards4. Extend the deadline for signing the MAI to enable full and proper public consultations to be heldSenator BourneTW4Senator Bourne(from 471 citizens)2181461X4West 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 decision 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 46 citizens)Petitions received.Notices218121812181Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I give notice that, on the next day of sitting, I shall move:That the Senate—(a) congratulates both Houses of the Western Australian Parliament for supporting abortion law reform;(b) notes that: (i) this support by the Western Australian Parliament for abortion law reform reflects the overwhelming level of public support for such reform, and (ii) abortion law reform was also supported by a representative group of doctors' groups, including the Royal Australian College of Obstetricians and Gynaecologists, the Royal Australian College of General Practitioners and the Royal Australian and NZ College of Psychia trists, who met in Perth on 30 March 1998 to discuss the issue; and(c) calls on the Commonwealth Government to support abortion law reform and to encourage all State Parliaments to implement similar abortion law reform legislation.21822182Macdonald, Sen IanSenator IAN MACDONALDYW4QLDLP10—I give notice that, on the next day of sitting, I shall move:That the following bill be introduced: A Bill for an Act to amend and repeal legislation relating to fisheries, and for related purposes. Fisheries Legislation Amendment Bill (No. 1) 1998 .21822182Campbell, Sen GeorgeSenator GEORGE CAMPBELLNB5NSWALP00—I give notice that, on the next day of sitting, I shall move:That the Senate—(a) notes that: (i) the Government has failed to adequately respond to estimates questions put on notice by the Economics Legislation Committee, and (ii) the questions concerned issues such as funding cuts to AusIndustry, research and development, anti-dumping policy, government purchasing and the Government's commitment to creating 200 000 manufacturing jobs; and(b) condemns the contemptuous attitude of the Minister for Industry, Science and Tourism (Mr Moore) and his department in failing to respond to these questions within the time frame set down.21822182Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I give notice that, on the next day of sitting, I shall move:That the following matters be referred to the Legal and Constitutional References Committee for inquiry and report by 12 August 1998:(1) The need for Commonwealth privacy legislation to be extended to the private sector, with particular reference to: (a) relevant international standards and obligations; (b) international comparisons; (c) current legislative and other frameworks for privacy regulation in the Commonwealth, States and Territories; (d) the role, responsibilities and practices of Commonwealth, State and Territory governments; (e) the needs and responsibilities of the private sector; and (f) the rights of consumers.(2) The extent to which the Privacy Amendment Bill 1997, introduced in the Senate by Senator Stott Despoja on 25 September 1997, effectively addresses the issues of privacy and the private sector, including the appropriateness of any amendments.(3) The appropriateness of using the National Principles for the Fair Handling of Personal Information, as produced by the Privacy Commissioner, as a basis for a co-regulatory regime for the private sector and the best means of implementing such a scheme.(4) The appropriateness of the provisions of the Privacy Amendment Bill 1998.21822182Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I give notice that, on 26 May, I shall move:That the Senate observes one minute's silence as a mark of respect for the Stolen Children National Sorry Day and that this minute's silence be observed immediately prior to question time at 2 pm.21822182Denman, Sen KaySenator DENMANFY5TASALP00—I give notice that, on the next day of sitting, I shall move:That the Senate—(a) notes: (i) the recent protests held in Tasmania on 31 March 1998 over the Howard Government's failure to meet the needs of Tasmanians with intellectual disabilities, (ii) that intellectual disability support services in Tasmania have substantial waiting lists and are struggling to satisfy demand, and (iii) that current funding is insufficient to maintain existing services let alone provide for those unmet needs in the community; and(b) calls on the Commonwealth Government to provide more funding of services for the intellectually disabled so that such services can be maintained, expanded and improved in Tasmania. 21832183Bourne, Sen VickiSenator BOURNETW4NSWAD00—I give notice that, on the next day of sitting, I shall move:That the Senate—(a) notes: (i) reports that a review by Arthur Andersen into the digitisation strategy of the Australian Broadcasting Corporation (ABC) commissioned by the Minister for Communications, the Information Economy and the Arts (Senator Alston) has found that: (a) the costs to the ABC of outsourcing its program making may be outweighed by quality and other considerations, including the ABC's ability to earn revenue from subsequent sales rights, (b) in program areas not generally considered to be commercially exploitable, such as education, science and religion, there has been little evidence of rapid commercial involvement and, in such instances, the ABC remains more price competitive than its private sector counterparts, and (c) there is a direct relationship between the extent to which the ABC is able to earn income with which it could potentially fund its digital investment and the extent to which it is able to acquire program rights, (ii) that there is, therefore, considerable advantage in the ABC being able to invest in a non-news production capacity and that this production capacity relies on the ABC being provided with appropriate levels of government funding, and (iii) that the ABC and the Special Broadcasting Service (SBS) should each receive a one-off government grant for digital funding without the requirement to outsource non-news and current affairs programs and to sell their real estate holdings;(b) calls on the Government to provide the ABC and SBS with a one-off grant for digital funding, as recommended in the Mansfield review, given that the Andersen report concludes that, `based on available information the cost and specification of equipment proposed by (the) ABC, broadly, do not appear inappropriate'; and(c) reminds the Minister that he was required by the Senate to table the Andersen report and calls on him to do so immediately. 21832183Stott Despoja, Sen NatashaSenator STOTT DESPOJA3I6SAAD00—I give notice that, on the next day of sitting, I shall move:That the Senate—(a) endorses the unanimous resolution of the rally organised by the National Tertiary Education Union, the National Union of Students, the Technical and Further Education (TAFE) division of the Queensland Teachers Union and the State Public Services Federation of Queensland, held on 1 April 1998 in Brisbane, that condemned the Commonwealth Government for: (i) failing to honour its pre-election promises to higher education and for its deregulation of university and vocational and technical education, and (ii) increasing student fees and charges; and(b) supports the rally's call for increased funding for higher education and TAFE, with the goal of eventual full public funding of the sector.21832183Faulkner, Sen JohnSenator FAULKNER5K4NSWALP00—I give notice that, on the next day of sitting, I shall move:That the Senate—(a) takes note of the report by the Australian Electoral Commission (AEC), Election 1996—Funding and disclosure report following the federal election held on 2 March 1996 , and, in particular, recommendation 10 regarding associated entities;(b) notes: (i) that the AEC identified that there are some areas of dispute in the wording of the Commonwealth Electoral Act 1918 definition of associated entities and that these should not be allowed to become sources of confusion or loopholes, (ii) that, to date, the AEC has relied on the cooperation of organisations in engaging in discussion as to their status as associated entities, however, in some cases the AEC has been unable to determine whether an organisation should disclose as an associated entity, (iii) that there is currently nothing to prevent an organisation from simply claiming that it does not meet the definition of an associated entity and refusing to supply any justification for its stance, (iv) that the AEC wrote to the Greenfields Foundation, to inquire as to its status as an associate entity and requested further information to be supplied, and (v) that the Greenfields Foundation exploited the apparent loophole in the definition of associated entity by writing back that it did not consider itself to be an associated entity, without supplying adequate information to justify that stance; and(c) calls on the Special Minister of State (Senator Minchin) to act quickly to amend the Act, as recommended by the AEC, to empower it to serve a notice on officers of an organisation for the purpose of ascertaining whether that organisation has an obligation to disclose as an associated entity.21842184Calvert, Sen PaulSenator CALVERT5F4TASLP10—I give notice that, on the next day of sitting, I shall move:That the Senate—(a) notes that: (i) the Leader of the Opposition in the Senate (Senator Faulkner) alleged on 3 March 1998 that: (a) the Natural Heritage Trust (NHT) grant awarded to Woodhouse Pastoral Company (the company) was for the private benefit of the Baillieu family and was a `rort', (b) Richard Percy Clive Baillieu was the current secretary, and that he and Maurice Howard Lawrence Baillieu were involved in this `rort', and (c) John Madden Baillieu was Chairman of EL & C Baillieu when the company was awarded the NHT grant, (ii) the NHT grant to the company is to protect the largest area of remnant grey box and bull oak woodland south of the Great Dividing Range, (iii) the woodland in question is listed on the National Estate for its ecological significance, containing a number of rare and threatened species, including 5 per cent of the known Australian population of swift parrots, (iv) this 270 hectares of woodland is half an hour from the centre of Melbourne in an area where its value for residential development would be tens of millions of dollars and the owner is prepared to place a covenant on the title to protect this precious bush in perpetuity, (v) a condition of the NHT grant is that the company provide $29 500 from its own funds to augment the NHT contribution, (vi) the public investment of $52 900 for fencing, the removal of invasive non-native species and the re-establishment of corridors of vegetation to link this bush to other nearby remnants, represents extraordinary value, (vii) the Department of the Environment has assessed this project as among the best bushcare projects in Victoria, (viii) the Trust for Nature in Victoria, an independent statutory authority set up to protect remnant native bush on private land, stated the NHT grant was a `fantastic deal' for Australia, (ix) Richard Percy Clive Baillieu died in 1941, (x) Maurice Howard Lawrence Baillieu died in 1961, (xi) John Madden Baillieu resigned as Chairman of EL & C Baillieu nearly 3 years ago, before the NHT was established, and (xii) it is 36 days since Senator Faulkner made these incorrect statements; and(b) calls on Senator Faulkner to apologise immediately and unreservedly to the Baillieu family for the hurt and damage to the family caused by his incorrect statements.21842184Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I give notice that, on the next day of sitting, I shall move:That the following matters be referred to the Rural and Regional Affairs and Transport References Committee for inquiry and report by 15 October 1998:(a) the current state of the Australian wool industry with regard to its structure, assets, future viability and needs, with particular reference to: (i) the future management of the wool stockpile, (ii) the performance, accountability, appointment processes, effectiveness of industry representation and communication methods of wool industry bodies, (iii) the future needs and roles of those wool industry bodies, and (iv) the ability of wool industry bodies to serve the interests of woolgrowers and affect their viability in the future; and(b) the mechanics of the wool pipeline from woolgrower to retail outlet, including an analysis of grower returns and profitability, with a view to developing recommendations as to how reforms would be implemented in the industry.21852185Ray, 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 28 days since the Prime Minister (Mr Howard) defied his own guidelines.21852185Tierney, Sen JohnSenator TIERNEYO15NSWLP10—I give notice that, on the next day of sitting, I shall move:That the Senate—(a) notes: (i) the record number of trainees and apprentices in Australia, and (ii) that in 1997 Australia recorded the highest number of apprentices and trainees since the introduction of traineeships in 1985;(b) observes that figures issued by the National Centre for Vocational Education Research show that there were a record 175 400 trainees and apprentices in June 1997;(c) notes that in the mid-1990s trainee numbers hovered around the 10 000 mark, but by June 1997 there were 47 800 trainees in Australia; and(d) recognises that these figures demonstrate the success of the Government's flexible training system in fulfilling the needs of employers, apprentices and trainees. Business21852185Motion (by Senator Carr) agreed to:That general business notice of motion No. 1073 standing in the name of Senator Carr for today, relating to the Government's response to a question asked at an estimates hearing, be postponed till the next day of sitting.2185Motion (by Senator Brown) agreed to:That general business notice of motion No. 1081 standing in the name of Senator Brown for today, relating to logging in East Gippsland, be postponed till the next day of sitting.2185Motion (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.2185Motion (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.2185Motion (by Senator Bourne, at the request of Senator Stott Despoja) agreed to:That general business notice of motion No. 923 standing in the name of Senator Stott Despoja for today, relating to the introduction of the Captioning for the Deaf and Hard of Hearing Bill 1998, be postponed till 13 May 1998.2185Motion (by Senator Bourne, at the request of Senator Stott Despoja) agreed to:That general business notice of motion No. 1014 standing in the name of Senator Stott Despoja for today, relating to cloning technology, be postponed till the next day of sitting. Committees218621862186Motion (by Senator Calvert, at the request of Senator Crane)—by leave—agreed to:That the time for the presentation of the report of the Rural and Regional Affairs and Transport Legislation Committee on the provisions of the Australian Capital Territory (Planning and Land Management) Amendment Bill 1997 be extended to 8 April 1998.Miscellaneous2186Motion (by Senator Bartlett) agreed to:That the Senate—(a) notes: (i) the decision by the Queensland Minister for Primary Industries (Mr Rowell) to end the practice of face branding cattle in Queensland, and (ii) the ongoing support of the Federal Government for the introduction of humane methods of cattle identification;(b) expresses its support for the decision of the Queensland Government to cease the face branding of cattle; and(c) calls on the Northern Territory Government to follow the lead of the Federal and Queensland Governments and cease the practice of face branding cattle immediately.Miscellaneous2186Motion (by Senator Brown) agreed to:That the Senate expresses concern and sympathy for the Tibetan patriots who are on a hunger strike and facing death in India to draw international attention to the plight of their homeland.Miscellaneous2186Motion (by Senator O'Brien) agreed to:That the Senate—(a) notes that: (i) the Pork Council of Australia held its annual general meeting in Canberra on 30 and 31 March 1998, (ii) the Australian pork industry is a key sector in the Australian economy with a gross value of production in the order of $720 million and a value of production at the point of retail sale of around of $1.5 billion, (iii) the industry is also an important provider of jobs, with 12 000 Australians directly employed in the industry and many more indirectly employed throughout regional Australia, (iv) the industry is currently suffering very low prices for its product which is causing severe hardship for many produces and their families, (v) pig meat imports from Canada increased significantly in 1997, (vi) the overall level of support to pig industries in Canada and the European Union (EU), as measured by the Organisation for Economic Co-operation and Development producer subsidy equivalents (PSE), are 16 per cent and 9 per cent respectively, compared with an Australian PSE for pig meat of 5 per cent, (vii) both Canada and the EU restrict access of imports of pig meat through either tariffs or tariffs quotas, and (viii) it is concerning that the industry has lost in excess of $20 million since the Government announced a $10 million assistance package; and(b) calls on the Government immediately to: (i) review the level of financial assistance and the nature of the adjustment package being provided to the industry in the light of these very difficult market conditions, (ii) provide for effective labelling arrangements to assist the industry in the effective marketing of its product, and (iii) investigate whether the level of imports is the primary cause of the industry's current difficulties and, if so, take action under the World Trade Organization provisions for emergency protection of an industry.Miscellaneous2186Motion (by Senator Brown) proposed: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. Question put.15:59:00The Senate divided. 0Allison, L. Bourne, V. *Brown, B. Lees, M. H.Margetts, D. Murray, A.Stott Despoja, N. Woodley, J.0Abetz, E. Bishop, M.Boswell, R. L. D. Brownhill, D. G. C.Calvert, P. H. *Campbell, G.Campbell, I. G. Carr, K.Collins, J. M. A. Coonan, H.Crane, W. Crowley, R. A.Denman, K. J. Eggleston, A.Ellison, C. Evans, C. V.Ferguson, A. B. Ferris, J.Forshaw, M. G. Gibson, B. F.Heffernan, W. 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. Parer, W. R.Patterson, K. C. L. Payne, M. A.Quirke, J. A. Reid, M. E.Reynolds, M. Sherry, N.Synon, K. M. Tambling, G. E. J.Tierney, J. Troeth, J.Watson, J. O. W. West, S. M.Question so resolved in the negative.Committees218721872187Motion (by Senator Bishop) agreed to: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 1998.21872187Motion (by Senator Calvert, at the request of Senator Watson) agreed to: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. 21872187Motion (by Senator Calvert, at the request of Senator Watson) agreed to: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.Committees21872187417:00:002187Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I table a statement on the 80th anniversary of repatriation by the Minister for Veterans' Affairs, and I seek leave to incorporate the statement in Hansard .Leave granted.The statement read as follows—80 years ago this month, a young man named George Gordon was killed on the Western Front. He was just an ordinary bloke, a roof tiler who lived at Concord in Sydney with his wife, Cathy, and their baby son.On that day in early April 1918, walking a few yards from his mate, Alfred Lane, George was cut down by the blast of a German shell exploding nearby.80 years ago this month, the Department now known as Veterans' Affairs was formally established with a charter to repatriate those returning from the First World War. This act of public policy shares more than an anniversary with the personal tragedy of George Gordon's death. The story of the two men at the centre of those few tragic seconds in France has remained the very essence of our mission, our work, our goals.Care of both those who returned and those who fell, remain our twin obligations.With the creation of the then named Department of Repatriation, the Australian Government took its first steps into areas such as public housing and health administration. And, although the nation had developed pension schemes by the turn of the century, the return of our soldiers and the need to care for dependants such as George Gordon's widow and son hastened activity and policy development in this area.The monetary cost has been staggering. In this financial year, $6.7 billion will be spent caring for and supporting veterans and their dependants. Yet, I know it is a cost that the Australian people willingly pay.The repatriation system is not simply a component of government. It has a complex ownership, perhaps most accurately described as a unique partnership between the ex-service community, the government and the broader Australian community.Our young nation's willingness to offer itself so completely for the cause of freedom and justice this century—not just in the World Wars, but in Korea, Vietnam, Malaya and other conflicts—has required a repatriation system able to provide support, compensation and of course, health care.Men like Alfred Lane came home needing years of medical treatment. To best serve their needs, in 1921, the Repatriation Department took over control of military hospitals in all States. In the same year, outpatient clinics and artificial limb factories were established.Since most of these institutions and services were in the big cities, the Local Medical Officer scheme was set up to cater for ex-servicemen in the bush. By 1919, more than 400 doctors around Australia had been appointed as Local Medical Officers.Today there are 16,000 LMOs.The specialised focus on war-related medicine in repatriation hospitals proved valuable. Many developments in medical science pioneered in those hospitals have been and continue to be applied in general medicine, treating Australians, young and old, who have never personally endured the horror of war.Similarly, the gradual shift from the old, rigid approaches in treating psychiatric conditions came about from observation of Repat hospital patients. A better understanding of the causes and effects of post traumatic stress disorder followed in depth research involving veterans of the Vietnam War.And today, the research goes on in search of new and better ways to treat the conditions which afflict veterans and also the wider community.After eighty years, repatriation in this country continues to evolve. Private patient care in public and contracted private hospitals has replaced the care provided through repatriation general hospitals. The Repatriation Medical Authority offers certainty and consistency in medical compensation issues. And where once our focus was almost entirely on the treatment of specific conditions, we now also confront the challenge of maintaining independence and quality of life. Coverage under the Veterans' Entitlements Act continues to expand, and standards of service for the veteran community are now formally set out in the Veterans' Service Charter, which I expect to release in a few weeks time.I have no doubt there will be more change—next month, next year, next century—because repatri ation in this country has always been driven by the need to provide our veterans and their families with the very best this country has to offer.Although health care and compensation have been the more widely known faces of repatriation, some of the greatest challenges over eighty years have been securing homes and jobs for entire generations of young Australians.Physical and mental trauma denied many the chance to even seek employment. For others, the difficulties were more subtle—one original Digger wrote "we came back to our careers as clumsy beginners, yet lacking the humility of beginners, demanding of ourselves the same skill and success as we had achieved in the business of soldiering".Yet from 1919 until the present day, helping soldiers move into meaningful and satisfying careers outside of the services has been a priority of the repatriation system. Training in technical and other skills was provided after the First World War, and after World War II, returned personnel were assisted with subsidised tertiary education, including living allowances.The need for employment assistance has not abated. Now a vocational retraining scheme helps younger veterans to find and retain jobs.For many returned servicemen the soldier settlement schemes were the answer to finding both a job and a home.The first scheme, established after World War I, was at best a limited success, when the combination of the harsh, unforgiving environment, a lack of capital and the impact of the Depression hit home.A more realistic arrangement was devised for the scheme introduced after World War II. This gave settlers a sounder capital base, a stepped repayment program and training in rural skills for those who needed it. Lessons had been well learnt and many more succeeded. To this day, some World War II veterans remain on their farms. Other farms have been passed to children and grandchildren. Many rural settlements like Robinvale, Loxton, Beerburrum, Wandoan, Kangaroo Island and the Murrumbidgee Irrigation Area would not be the communities they are today without the honest toil of soldier settlers.Working in tandem with soldier settlement was another key principle of early repatriation policy—putting the Great Australian Dream—owning a home—within the grasp of those who had served their country in war.The War Service Homes scheme, now called Defence Service Homes, offered veterans or their dependants the opportunity to acquire homes for modest sums with mortgages at low rates of interest. The foundation stone of the first War Service house was laid in Sydney in July 1919.During the Depression, many couldn't afford to keep up the payments so special arrangements were made—the term of the mortgage was extended, instalments reduced or even deferred.This attitude has characterised the scheme's administration throughout its history and today 86,000 veterans enjoy home loan interest rates with a guaranteed subsidy.Of course, for over 102,000 Australians, the chance for career, home and family was denied. They remain where they fell, becoming one with the lands where they struggled, on every continent on the earth.Since World War I, the Imperial War Graves Commission, now the Commonwealth War Graves Commission, held chief responsibility for all cemeteries for British Commonwealth war dead.The Australian Government, through the Department of Veterans' Affairs, now shares some administrative responsibility and costs of establishing and maintaining these cemeteries.They are special places where as Australians we can feel immensely proud of what our country stood for then and stands for now. The years pass, the distance between those men and women and ourselves grows. Yet with growing commitment, we remember them . . . . at memorials in every town, suburb and city centre, at the Australian War Memorial in Canberra, at memorials throughout the world, on ANZAC Day and Remembrance Day, and in fact on any given day, when someone, somewhere, thinks of those who gave all that they had to give.Mr Speaker, eighty years on, I believe that the Australian Government and the Australian people, through the repatriation system administered by today's Department of Veterans' Affairs, have kept faith with those to whom we owe everything. In partnership with ex-service organisations, many wounds have been healed, many families supported and many lives rebuilt.As Australia approaches its Centenary of Federation, the duty to care for veterans of war and peace keeping is still proudly accepted by all Australians, as it was when the nation was yet young. We acknowledge the debt that is owed, and we willingly carry forward into Australia's next century the responsibility, passed to us from previous generations, of continuing to meet that debt and to commemorate their service.It is this Government's promise—and one I know will be endorsed by the Opposition—that we will continue to serve Australia's veterans, war widows and widowers and their dependants for as long as they need us. I know that we make this promise with the full support of the Australian community.This Government is committed to maintaining the beneficial provisions underpinning the legislation which frames our repatriation system. Our commitment to supporting our veterans will not diminish with time. Only the ways in which we fulfil that commitment will change.I genuinely believe that men like George Gordon rest peacefully in the knowledge that their sacrifice is honoured, remembered and has enriched our nation.That their widows and children, many of whom like George's son grew up to fight again in another war, were treated with respect, educated and helped through testing times.That their mates were given help with housing, new careers and could access the medical care they so desperately needed.And I hope they know that as a nation we have taken their legend, their legacy, as the very foundation of our national character, so that it lives on in the soul of every Australian.Mr Speaker, we can never fully know the human cost—of potential unfulfilled, of achievement never realised, of personal happiness and contentment never enjoyed.No repatriation system can ever replace in full what war takes away. But in supporting, caring, compensating and remembering, each and every one of us is expressing our profound appreciation and gratitude to those who served their country in the most selfless way.Committees21892189218916:06:002189Calvert, Sen PaulSenator CALVERT5F4TASLP10—On behalf of Senator O'Chee and the Standing Committee on Regulations and Ordinances, I present a statement on disallowable instruments and parliamentary propriety. I seek leave to incorporate the statement in Hansard and to move to take note of the document.Leave granted.The document read as follows—The Annual Reports of the Standing Committee on Regulations and Ordinances give instances of breaches of parliamentary propriety in relation to delegated legislation. Some of these breaches include cases where administrators, for a variety of reasons, have failed to observe the valid provisions of legislative instruments in force or have substitut ed other requirements for those prescribed by legislative instrument.The Committee would now like to report on a related aspect of parliamentary propriety. In two recent cases the Committee scrutinised instruments where administrators had not actively substituted their own rules, but had repealed instruments or let them lapse and then dealt with the matter by means over which the Parliament has no control and about which it may not even be aware. Parliament provides for delegated legislation in the expectation that the power to make legislative instruments will be exercised whenever it is possible to do so. It is not satisfactory for administrators to avoid using provisions under which their decisions will be subject to full parliamentary scrutiny including possible disallowance and instead to use administrative means to avoid such scrutiny. Where there is a choice between making and applying a legislative instrument or addressing the matter by administrative means parliamentary propriety dictates that the former method should be used. This does not mean that wherever an Act provides for a legislative instrument that the power should be exercised immediately. It does mean, however, that where Parliament provides for legislative instruments that there is an expectation where a set of circumstances arises which is within those contemplated by the enabling Act then a legislative instrument should be made and administered. The details of the two cases where this did not occur illustrate the point.The Safety, Rehabilitation and Compensation Act 1988 provides generally for workers' compensation and rehabilitation of Commonwealth employees. As part of its general scheme the Act provides for Comcare, which is the administering agency, to recover overpayments made to a client. The Act also provides for Comcare to waive the debt, but such waiver must be in accordance with directions given by the Minister. Such directions are, very properly, disallowable instruments.The particular provision relating to the Minister's directions came into effect on 24 December 1992 and the Minister exercised the power on 28 April 1993. This Direction remained in force for more than four years until it was revoked by the Minister in the Directions relating to the waiver of debts due to Comcare, No.4 of 1997 , which came into effect on gazettal on 8 August 1997. The Committee scrutinised this instrument and was surprised by advice in the Explanatory Statement that the revoked Determination would not be replaced. Instead, the Explanatory Statement advised, the discretion to waive debts would continue to be administered by Comcare in accordance with existing policy and procedures, including all the usual financial management requirements and accountability processes. The Explanatory Statement also advised that the decision to revoke the Direction was made taking into account advice from the Attorney-General's Department that its validity was questionable and if challenged may be found by a court to be not authorised by the enabling Act. The Explanatory Statement explained that the reason for this was a decision in a Federal Court case four years earlier about a similar enabling provision in a different Act.The Committee was concerned at this advice and wrote to the Minister. The Committee advised that it accepted that if the previous Direction was invalid then changes should be made. The Committee would, however, welcome an assurance that a fresh valid Direction would be made as soon as possible. The Act provides for an instrument to be made and it may be a breach of parliamentary propriety if this provision of the Act was disregarded. The concern of the Committee was that the Act provided for Directions to be subject to tabling in both Houses and to possible disallowance. The present position, on the other hand, was that this matter was in future to be effectively removed from parliamentary scrutiny and dealt with by internal departmental procedures, without the oversight or even the knowledge of parliament. The Directions in question were not trivial, dealing with the rights of welfare recipients and with the protection of the public revenue.The Minister replied to the Committee, confirming that there was no Direction at present in force. The Minister further advised that the enabling Act did not positively require that a Direction be made or that a revoked Direction be replaced. The Attorney-General's Department had advised that, because the Act gave the Minister a discretion to give a Direction, there was no parliamentary intention or expectation that the Minister should decide to exercise this power. The Minister explained that his legal advice was that the defects in the earlier Directions could not be remedied in any replacement instrument. The decision to revoke reflected the decision for the time being not to exercise the statutory power. If further experience suggested that it was appropriate then the Minister would give a Direction within the current statutory power or ask Parliament to broaden the power.The Committee wrote back to the Minister, advising that it accepted his advice about the nature of the earlier instrument and that in future he might decide to give a new Direction or to seek amendment of the enabling Act. The Committee advised the Minister, however, that it did not accept the advice that a parliamentary enactment providing for a disallowable instrument shows no intention or expectation that the Minister should decide to exercise the power. The Committee's position was that if an Act provides for a matter to be addressed by an instrument which is subject to tabling and disallowance, then as far as practicable this is what should be done.The second case which illustrates this general point is the Federal Court Rules (Amendment), Statutory Rules 1997 No.143 , virtually the sole purpose of which was to provide for rules dealing with Native Title Proceedings under the Native Title Act 1973 . The Native Title Rules were first included in the Rules with effect from 21 March 1994 with a sunset clause which provided that they cease to be in force on 1 March 1995. One day before that expiry fresh Rules extended their effect for another 12 months and again one day before this expiry new Rules extended their operation for a further 12 months. This sunset clause, however, expired on 1 March 1997 and was not replaced until 23 June 1997. The Committee wrote to the Chief Justice of the Federal Court advising that there appeared to be a gap of almost four months during which there were no Rules addressing native title issues.The Acting Chief Justice replied, advising that the judges were aware that there would be a period during which there would be no Native Title Rules in place. The judges had decided that this would cause no difficulty for proceedings in the Court because native title proceedings were heavily case managed, that is to say, their progress is the subject of the close attention and directions of a judge. The judges had decided at a meeting in September 1996 that repeated extensions of the Native Title Rules by sunset clause was undesirable and that it would be preferable to have a permanent form of rules, even if this meant a hiatus. The opinion of the judges were that this would cause no injustice or inconvenience.The Committee wrote again to the Acting Chief Justice noting that the Act of Parliament which creates the Federal Court provides for Rules of Court and for parliamentary scrutiny of those Rules. The Committee advised that it was concerned about the gap of four months during which there were no Rules for this important and sensitive matter. The Committee noted that new Rules, which differed only in minor ways from the previous Rules, were not made until some nine months after the meeting of the judges which discussed this matter. The Committee advised that the hiatus may raise issues of parliamentary propriety. The Native Title Rules are legislative in nature and drafted generally in a mandatory fashion, with the word "must" used dozens of times, sometimes in conjunction with "as soon as practicable" or "immediately". Further, the Rules provide for quite detailed procedural matters. The Committee asked for further advice on the practical effect of changing from detailed mandatory Rules to case management and then back to detailed Rules.The Chief Justice replied, advising that while he appreciated the Committee's concern he had made personal enquiries and could give an assurance that the gap between the Rules did not cause any problems or affect cases. The Committee accepted this advice about the practical effect of the gap.These two cases, however, are instances of where there may have been a breach of parliamentary propriety. In the Comcare case the justification for revoking and not remaking the Directions was technical legal problems arising from a court case four years earlier. The apparently defective Direction was in fact made shortly before the court decision and had been administered in that state for those four years. The solution here should have been to make a fresh instrument as far as this was legally possible or to amend the enabling provision to put the matter beyond doubt. In the Native Title Rules case the Committee would have preferred that the matter was dealt with continuously under the disallowable Rules of Court, rather than for three years under the Rules, then four months with no legislative instrument in force, than again under the Rules.The Committee will continue to scrutinise legislative instruments to ensure not only that provisions in force are administered and are not disregarded, but also that legislative instruments are actually made where this is appropriate. The Committee is grateful for the assistance which it has received in its present scrutiny from the Minister for Workplace Relations and Small Business, the Hon Peter Reith MP, and from the Chief Justice of the Federal Court, the Hon Michael Black, and the Acting Chief Justice, the Hon Raymond Northrop.5F4Calvert, Sen PaulSenator CALVERT—I move:That the Senate take note of the document.I seek leave to continue my remarks later.Leave granted; debate adjourned.Bills2191Messages received from the House of Representatives agreeing to the amendments made by the Senate to the following bills: Trade Practices Amendment (Fair Trading) Bill 1997 Insurance Laws Amendment Bill 1997 Health Legislation Amendment Bill (No. 2) 1997 Bills2191A message from His Excellency the Governor-General was reported, informing the Senate that he had assented to the following laws: Chemical Weapons (Prohibition) Amendment Bill 1997 Family Trust Distribution Tax (Primary Liability) Bill 1997 Family Trust Distribution Tax (Secondary Liability) Bill 1997 Bills2192r4552192Consideration resumed.10000CHAIRMANThe CHAIRMAN—Order! The committee is considering the Native Title Amendment Bill 1997 [No. 2] . When we reported progress earlier today, the committee was considering those parts of the bill relating to the indigenous land use agreements, and opposition amendments Nos N11 to N16 had been postponed. The question is that the bill, as amended, be agreed to.16:08:002192Bolkus, Sen NickSenator BOLKUSXE4SAALP00—Can I just report non-progress with respect to the postponement of those amendments. We postponed them so that we could see if there was any way that we could satisfy Senator Harradine's concern over the question time break. We are still working on that, and I suggest that we come back to them some time later in the proceedings, if that is acceptable.There is some concern. We have been talking to advisers on all sides, but there is some concern that the amendments do not do what Senator Minchin is concerned they might be doing. I think we are all coming from the same objective here. It might just be a bit longer to see if we can resolve the right words.10000CHAIRMANThe CHAIRMAN—So the postponement continues on amendments Nos N11 to N16. If that is the case, we will now move to Democrat-Greens (WA) amendments.16:09:002192Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I move:(162) Schedule 1, item 30, page 130 (lines 3 to 30), omit subsection (1), substitute: (1) The Federal Court may order the Registrar to remove the details of an agreement under Subdivision B or C of Division 2C of Part 2 from the Register if an approved determination of native title is made in relation to some or all of the area covered by the agreement and the Court is satisfied, on application by the persons who, under the determination, hold native title in relation to the area , that the agreement would not have been authorised had it been known that those persons only were the persons entitled to authorise the making of the agreement. (1A) The Registrar must remove the details of an agreement from the Register if: (a) the agreement expires; or (b) all the parties advise the Registrar in writing that they wish to terminate the agreement; or (c) the Federal Court, under subsection (2), orders the details to be removed.(163) Schedule 1, item 30, page 131 (after line 10), at the end of section 199C, add: (4) The Federal Court must not make an order under subsection (2) unless it is satisfied that, if the party referred to in subsection (3) is one of the native title holders, authority to enter into the agreement would not have been given but for the fraud, undue influence or duress. (5) If the Federal Court makes an order under subsection (2), the Court may also grant further or ancillary relief against any person involved in the fraud, undue influence or duress for the purpose of compensating any party to the agreement who has suffered loss as a result of the order to remove details of the agreement from the Register.Amendments Nos 162 and 163 are alterations to the government's amendments, and we hope the Senate will support them.16:10:002192Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—These are the amendments I mentioned earlier which relate to the Federal Court not being able to sign off an indigenous land use agreement unless it is satisfied that there has been no duress and enabling the court to change an agreement for which there is prima facie evidence that such duress has been used. They are very reasonable amendments. I commend them to the Senate. Question put: That the amendments (Senator Woodley's ) be agreed to.16:14:00The committee divided. (The Chairman—Senator S. M. West)33Allison, L. Bartlett, A. J. J.Bishop, M. Bolkus, N.Bourne, V. Brown, B.Campbell, G. Carr, K.Collins, J. M. A. Conroy, S.Denman, K. J. *Evans, C. V.Faulkner, J. P. Forshaw, M. G.Harradine, B. 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.Schacht, C. C. Sherry, N.Stott Despoja, N. West, S. M.Woodley, J.32Abetz, E. Alston, R. K. R.Boswell, R. L. D. Brownhill, D. G. C.Calvert, P. H. *Chapman, H. G. P.Colston, M. A. Coonan, H.Crane, W. Eggleston, A.Ellison, C. Ferguson, A. B.Ferris, J. Gibson, B. F.Heffernan, W. Herron, J.Hill, R. M. Kemp, R.Lightfoot, P. R. Macdonald, I.Macdonald, S. MacGibbon, D. J.Minchin, N. H. Newman, J. M.Parer, W. R. Patterson, K. C. L.Payne, M. A.Reid, M. E.Tambling, G. E. J. Troeth, J.Vanstone, A. E. Watson, J. O. W.Cook, P. F. S. O'Chee, W. G.Cooney, B. McGauran, J. J. J.Crowley, R. A. Synon, K. M.Gibbs, B. Campbell, I. G.* denotes teller(Senator Knowles did not vote, to compensate for the vacancy caused by the resignation of Senator Bob Collins.)Question so resolved in the affirmative.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Chapman)—We now move to Greens (WA) amendments Nos 20 to 31, and 32A.16:18:002193Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I move:(20) Schedule 1, item 9, page 22 (lines 19 to 21), omit "future" (wherever occurring).(21) Schedule 1, item 9, page 23 (lines 3 and 4), omit "a future act or class of future act" (wherever occurring), substitute "an act or class of acts".(22) Schedule 1, item 9, page 23 (line 7), omit "a future act", substitute "an act".(23) Schedule 1, item 9, page 23 (after line 30), at the end of section 24BD, add:(4) If no representative body for the area (or a part of the area) is a party to the agreement, the registered native title bodies corporate must consult with such a representative body as to the terms of the agreement before it enters into the agreement.(24) Schedule 1, item 9, page 25 (after line 24), at the end of section 24BI, add:(2) The Registrar must not register the agreement if a representative body for the area notifies the Registrar, within that period of 1 month, that no representative body was consulted in accordance with subsection 24BD(4).(25) Schedule 1, item 9, page 26 (line 5), omit "future" (wherever occurring).(26) Schedule 1, item 9, page 26 (lines 23 and 24), omit "a future act or class of future act" (wherever occurring), substitute "an act or class of acts".(27) Schedule 1, item 9, page 26 (line 27), omit "a future act", substitute "an act".(28) Schedule 1, item 9, page 28 (after line 11), at the end of section 24CD, add:(7) If no representative body for the area (or a part of the area) is a party to the agreement, the native title group must consult with such a representative body as to the terms of the agreement before it enters into the agreement.(29) Schedule 1, item 9, page 29 (lines 4 to 22), omit subsection (3), substitute:Certificate or statement to accompany application(3) Also: (a) the application must have been certified by all representative Aboriginal/Torres Strait Islander bodies for the area in performing their functions under section 203BE in relation to the area; and (b) the certificate must include a statement to the effect that the following requirements have been met: (i) all reasonable efforts have been made (including by consulting all representa tive Aboriginal/Torres Strait Islander bodies for the area) to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified; (ii) each of the persons so identified has had a reasonable opportunity to participate in a decision to authorise the making of the agreement; (iii) there was consultation with a representative body as to the terms of the agreement in accordance with subsection 24CD(7).Note: The word authorise is defined in section 251A.(30) Schedule 1, item 9, page 30 (line 23), omit "paragraphs 202(8)(a) and (b)", substitute "paragraphs 203BE(5)(a), (b) and (c)".(31) Schedule 1, item 9, page 31 (line 18), omit "paragraphs 202(8)(a) and (b)", substitute "paragraphs 203BE(5)(a), (b) and (c)".(32A) Schedule 1, item 9, page 32 (line 23), omit "paragraphs 202(8)(a) and (b)", substitute "paragraphs 203BE(5)(a), (b) and (c)".These amendments include provision for the rep bodies to get a look at agreements before they are signed off. Basically, it is, if you like, a small insurance policy to find out whether or not there has been proper process followed in the way agreements take place. It is necessary because there might be agreements made that do not take into consideration the issues of a number of different groups within an area. It is not unreasonable to suggest that the representative bodies can at least sight the agreements before they are signed off and agreed to.Amendments agreed to.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—The question is that schedule 1, item 9, section 24CL, stand as printed.Question resolved in the affirmative.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—We now move to Democrats-Greens amendment No. 32.16:20:002194Brown, Sen BobSenator BROWNQD4TASAG00—I think it is a good opportunity here while Senator Margetts is looking at that to ask the minister about a statement made this morning by the Prime Minister, which has been taken up by the media, in which he sent a strong signal that the government will reject changes made to the Wik legislation and that changes to the bill would make a trigger for a double dissolution election. Mr Howard has told coalition MPs that it looks like the Wik legislation as amended by the Senate will be unacceptable to the government.I think it would be helpful if the minister could tell the committee exactly what the Prime Minister did say there and let the committee know whether at this stage already, because of the votes that there have been on amendments, the government has moved into a position of rejecting the Senate amendments and, regardless of what plays out in the next two days, he is in the position of rejecting the legislation and moving towards using this legislation as another trigger for a double dissolution election.16:22:002194Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I really think we are delaying committee deliberation of the detailed amendments being made to this bill in a way which is unhelpful and is not going to help anybody get home by Easter. I spoke about this matter yesterday, Senator Brown. You asked a very similar question yesterday about the government's attitude to this whole thing. You know my position; I am in here moving a government bill, which we are trying to get through in the form in which it is presented.We will debate all your amendments. The Senate will make its views known on those amendments. We will then take the bill to the House of Representatives. The House of Representatives will decide which amendments it accepts and which, if any, it cannot accept. There is no point in playing politics around all that.Let us just get on with the business of deciding what the Senate wishes to do with the government bill and then the government in the House of Representatives will consider the bill as presented to it by the Senate and make the appropriate decision. It remains sensible for us simply to continue with the task before us, as I said yesterday, and not to get diverted by what is going on outside but just to get down to the business of discussing each of these amendments and making a decision.16:23:002195Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I move:(32) Schedule 1, item 9, page 31 (line 25) to page 32 (line 2), omit clause 24CJ, substitute:24CJ Decision about registration(1) The Registrar must, after the end of the notice period, decide whether or not to register an agreement covered by an application under this Subdivision on the Register of Indigenous Land Use Agreements.(2) If the Registrar is satisfied that the agreement, or any act the subject of the agreement, is covered by an alternative procedure agreement on the Register at the time the area agreement was entered into, the Registrar must not register the agreement unless satisfied that: (a) it is consistent with the alternative procedure agreement; and (b) any conditions or requirements of the alternative procedure agreement have been complied with.This amendment requires the registrar to register an agreement only if the agreement is consistent with any relevant alternative procedure agreement which has previously been registered. This is to overcome the problem that has arisen, where there are a number of agreements in conflict with one another, so that in fact we can have a regime that sorts this out.16:24:002195Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I wish to speak in support of this amendment. Basically it is about checks and balances and gives some direction to the role of the registrar—that the registration of agreement is consistent with the alternative procedure agreement, and that conditions have been complied with. One would like to think that that is the case, that if there are conditions on the agreement then there is some check or balance in the system where the registrar ticks that off. So I think it is very reasonable and I commend it to the Senate.Amendment not agreed to.16:25:002195Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—Also on behalf of Senator Margetts, I move:(34) Schedule 1, item 9, page 35 (line 13), omit "future" (wherever occurring).(35) Schedule 1, item 9, page 35 (lines 30 and 31), omit "a future act or class of future act" (wherever occurring), substitute "an act or class of acts".(36) Schedule 1, item 9, page 36 (line 1), omit "a future act", substitute "an act".(37) Schedule 1, item 9, page 36 (line 8), omit "future".(38) Schedule 1, item 9, page 42 (line 17), omit "future ".(39) Schedule 1, item 9, page 42 (line 21), omit "a future act", substitute "an act".(40) Schedule 1, item 9, page 44 (lines 8 to 17), omit subparagraphs (5)(b)(i) and (ii), substitute "paragraph 203BE(5)(b)".(41) Schedule 1, item 9, page 45 (line 6), omit "future ".(42) Schedule 1, item 9, page 45 (line 13), omit "future".I indicate that these amendments simply substitute some words that we believe improve the bill.16:25:002195Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—These deal with the future act and they refer now to an act or a class of acts rather than a future act or class of future acts. Basically it will have the impact of not dealing with future acts but dealing with acts in general.16:25:002195Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—The government has made it clear what we believe the scope of agreements should be—that they should primarily be about the doing of future acts. That is what agreements are about: doing future acts that may impact on native title. That is why the reference throughout is to future act. We have made certain amendments that deal with the question of past acts. But we see no purpose at all in these amendments 34 to 42.Amendments not agreed to.16:26:002195Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I move:(13) Schedule 1, item 9, page 19 (after line 21), after Division 2B, insert: Division 2C—Indigenous land use agreementsSubdivision A—Overview23K Overview of Division(1) This Division provides for the validation of acts (not limited to future acts) by means of agreements called indigenous land use agreements: see Subdivisions B, C and D.(2) Subdivision E provides for the registration of those agreements.(14) Schedule 1, item 9, page 20 (lines 9 and 10), omit "Subdivisions B, C and D", substitute "Division 2C".(43) Schedule 1, item 9, Subdivisions B to E, page 22 (line 9) to page 45 (line 14), reposition the subdivisions before Division 3, page 19 (before line 22).Note: Renumber sections 24BA to 24EC.(161) Schedule 1, item 30, page 129 (line 7), omit "Subdivision B, C or D of Division 3", substitute "Division 2C".(164) Schedule 1, item 30, page 132 (line 10), omit "Subdivision B, C or D of Division 3", substitute "Division 2C".I indicate that these amendments are to promote the use of ILUAs and to signify the primary role it is hoped they will play in the resolution of native title issues. I spoke at length about this before. It simply relocates the provisions relating to ILUAs to the front of the act and will ensure that the provisions apply to the resolution of native title issues generally and not just to future acts.Amendments not agreed to.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Chapman)—That completes the indigenous land use agreements amendments to the extent that we can deal with them at this stage.16:27:002196Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I think we can probably go back to opposition amendments which were deferred before lunch. There was some concern as to whether the opposition amendments went further than we were suggesting. Our contention is that the government's validation regime stands throughout this legislation and they get the regime that they have always wanted; but we do think it is important that there should be capacity for the compensation aspects to be considered and considered not just in the way that is provided in the legislation. There is obviously a capacity for com pensation when someone's rights are affected and when someone's property rights are affected. Clause 22D of the bill states:If an intermediate period act is an act attributable to the Commonwealth, the native title holders are entitled to compensation for the act.We say that there also needs to be some flexibility with respect to that, and that flexibility is provided by our amendments which allow the compensation regime to be accommodated through an ILUA. It is a more convenient, more flexible and much more accessible way of handling the particular problem of compensation. We cannot see why the government has a philosophical or legal problem with it. In terms of a legal problem, let us put it on the record that the clause is very clear and definite. That is, the question of validation is not to be part of an ILUA. The validation happens; it is a question of compensation. We say that, in the same way as one would have a right to pursue it in courts or tribunals, this is the easier, more expedient and more acceptable way which allows some flexibility in the ILUA structure to pick up it up.16:30:002196Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I indicate that the Democrats will be supporting the Labor Party amendments.16:30:002196Harradine, Sen BrianSenator HARRADINE6H4TASIND00—Prior to lunch, there was some suggestion made by the minister that, even to achieve the objective—and, I believe, a laudable objective—sought by the opposition in the particular amendment that we are discussing, there may well need to be some amendments to other parts of the legislation. I am prepared to listen to what those amendments might be.I did make the point prior to lunch that I would be supporting these amendments. I said, in fact, that I was confused about the situation because of statements made by the minister. It may well be that there may need to be further amendments to the legislation in other parts of the legislation so there is no conflict between what can be done here and what has to be done elsewhere.16:31:002196Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—Mr Temporary Chairman, as I understand it, the ALP is not proposing any changes to their amendments, so they are presenting the amendments as originally presented. So our concerns remain. I would point out that the government amendment which the Senate has already accepted, specifically No. 15, has been put there to make it clear that agreements can cover compensation for past acts, so that is already provided for.What we are concerned about is the proposition that parties can agree as to, in effect, the legal consequences of past acts—in other words, to the validation of past acts. That still remains, apparently, the purport and, without other amendment, it is suggesting that parties can agree to override or waive the legal consequences of the bill as presented to the Senate—that is, as to the validation regime and the consequences of validation. Those problems still remain and, if it is compensation you are worried about, that has already been covered.16:33:002197Bolkus, Sen NickSenator BOLKUSXE4SAALP00—Someone said of me yesterday that just because I say it, it does not mean it is true or it is happening. The clause is quite specific, Senator Minchin. The validation is protected, and that has been your objective all the way through. You want to protect the validation of past acts and intermediate period acts. That is protected specifically under (ea). And that is the point that I think needs to be recognised by the government. Rather than confusing anyone who wants to interpret this clause in a court of law later on, I think we should stick to the words there—protection for the validation of past acts or intermediate period acts, consideration through an ILUA for any consequences thereof. I think that strikes the right balance.16:33:002197Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—As I said before question time, you have got to draw a distinction between validation per se and whether or not that occurs—in other words, that a past act or an intermediate period act is validated. The second issue is what is the consequence of that validation of that act upon native title. Then you get into the question of whether it is category A, B, C or D in relation to extinguishment or non-extinguishment. So there are two issues at stake.As I understood it, what was meant to be achieved was that the parties could agree that, sure, they are not trying to overturn the validation, but you may well seek to allow the parties to agree as to an alternative effect of the validation—in other words, agree that some other consequence than that provided by law should prevail as to the effect of the validation.We are saying that that seems to us outside the scope of the sensible agreements provision. It runs counter to the law as laid down in this act as to the validation regime and its effects in the category A to D issues, and the parties cannot agree to waive the law or vary the law. That has never been part of our legal system, nor should it be, except where the law specifically allows that. So you still have this fundamental problem if that is what you are trying to achieve.16:35:002197Bolkus, Sen NickSenator BOLKUSXE4SAALP00—The law provides for validation and the consequences of validation in respect to the legal impact of validation. What we are talking about here is a system of compensation which would accommodate any direct or indirect impact on native title. So, as I say, Senator Minchin, your legislation provides for validation and the effect of it, and it validates a number of acts. What we are talking about here is ensuring that there can be a compensatory regime in respect to the consequences of such validation.16:35:002197Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—The Senate has already agreed to accept government amendment 15 which provides that parties can agree on the following matter:(ea) compensation for any past act, intermediate period act or future act;So we have met that concern. It was raised last time, and we have taken it on board. We have brought before you a specific provision which allows the parties to make agreements about compensation. We have already passed that and agreed to it.What, in addition to that, are you trying to achieve with this amendment? If that is what is meant to be achieved, we have done that; we have agreed on that. What else are you trying to achieve by your amendment?10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Chapman)—The question is that the amendments be agreed to. I think the ayes have it.16:37:002198Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I might just ask if Senator Harradine is clear on what we were then voting on.16:37:002198Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I still believe that there is a need for an amendment to other provisions, as has been indicated by the minister. I would seek leave of the committee to have these amendments re-committed. I would like to see any amendments to other sections of the legislation, as indicated, prior to my vote being recorded on this matter.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Are you seeking to have these amendments which we have just dealt with re-committed?6H4Harradine, Sen BrianSenator HARRADINE—You called it `aye'. I would prefer not to vote on that matter.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—You did indicate that you were voting at the time, Senator Harradine; that is why I called it `aye'. Is leave granted to recommit amendments N11 to N16?Leave granted.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Senator Harradine, do you want the recommitted vote to occur now?6H4HARRADINESenator Harradine—Yes.16:39:002198Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I seek leave of the committee to defer the recommitted vote. I know Senator Harradine has some concerns about consequential changes. It might be appropriate for us to defer these until later and see what sorts of amendments can be moved to sit with the opposition amendments that we are discussing now, to see whether we can resolve those concerns. So I would appreciate it if we could defer it until later in the day.6H4HARRADINESenator Harradine—That is okay by me. That is the point I am concerned about—the effect that this is going to have on the validation regime.16:40:002198Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—Can I give notice that we wish to discuss the recommittal of the vote on the previous Greens amendments 162 and 163, because they do, in a sense, contradict a government amendment dealing with the same matter. So two amendments have been passed that, in a sense, contradict each other. We will need to discuss the recommittal of those.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Chapman)—Is leave granted to defer consideration of opposition amendments N11 to N16?Leave granted.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—We will now move to revised sheet 5—primary production. We will deal first with government amendments 24 to 26.16:41:002198Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I move:(24) Schedule 1, item 9, page 50 (line 13), after "is", insert "required or permitted to be".(25) Schedule 1, item 9, page 55 (lines 19 to 22), omit subparagraphs (e)(ii) to (iv), substitute: (ii) to extract, obtain or remove sand, gravel, rocks, soil or other resources (except so far as doing so constitutes mining);(26) Schedule 1, page 145 (after line 32), after item 57, insert:57A Section 253 (paragraph (c) of the definition of mine )Repeal the paragraph, substitute: (c) quarry; but does not include extract, obtain or remove sand, gravel, rocks or soil from the natural surface of land, or of the bed beneath waters, for a purpose other than: (d) extracting, producing or refining minerals from the sand, gravel, rocks or soil; or (e) processing the sand, gravel, rocks or soil by non-mechanical means.The government has a few amendments in the primary production area. By and large, the government's proposals on primary production were accepted by the Senate in November-December. After discussion with other parties, we have moved a couple of minor amendments to clarify the operation of these provisions.Government amendment 24 makes it clear that future acts that make it legally possible for a non-exclusive pastoral lease that is larger than 5,000 hectares to be used for non-pastoral purposes, whether or not it is in fact used for non-pastoral purposes, will not be permissible under section 24GB. It is a fairly technical amendment, but it clarifies some concern that was mentioned before about this limitation that we put in, in good faith, about the granting of additional rights in relation to 5,000 hectare properties and above, just to make it clear that it is the grant and not whether it is used for non-pastoral purposes.Government amendments 25 and 26 relate to the extraction, obtaining or removal of sand, gravel, rocks, soil and other resources. The effect of amendment 25 is that the granting of rights to extract, obtain or remove sand, gravel, rocks, soil or other resources is permitted under the primary production provisions in the bill, so long as that does not amount to mining. As I said, the Senate has already accepted the regime that permits these sorts of activities, but this clarifies their operation and makes it clear to what activities they apply.Amendment 26 makes it clear that the definition of `mine' does not generally include the extraction, obtaining or removal of sand, gravel, rocks or soil from natural surface of land, or of the bed beneath waters. This can only be mining if it is for the purposes of extracting, producing or refining minerals from the sand, gravel, rocks or soil, or otherwise processing it by non-mechanical means.We are just restructuring those amendments. We have taken out, as will be seen later, quarrying, so that quarrying is dealt with in a way that can attract the right to negotiate process. But for extraction of these sorts of things—sand, gravel, rocks and soil—on pastoral leases, which is something that does occur, there is a separate, alternative procedure provided for those and these sorts of activities should not go through the right to negotiate process.16:43:002199Bolkus, Sen NickSenator BOLKUSXE4SAALP00—The opposition will agree to a couple of the government amendments but we do have further amendments to suggest to them. That will be part of the subsequent debate. This raises an area which has been of concern to all involved in this debate. Basically, what we have here is a bill that proposes to allow a range of activities to take place on pastoral leases going beyond traditional pastoral use. They will occur, under the government scheme, without a compulsory acquisition and without the native title holders having the right to negotiate, as would have been the case under the 1993 legislation.The activities that we are concerned about are activities which are allowed to go beyond what are current legal rights of pastoralists and, in some respects, give some of them a windfall gain at the expense of not only indigenous people, but also average Australians, who have to bear the ultimate burden of compensation for impairment of native title. The bill has the direct effect therefore of diminishing native title rights—rights that have been uncovered by both the Mabo and Wik decisions. As such, we feel that the bill lays the foundations for constitutional problems and workability problems. Labor recognised that there was a need to provide certainty.Different to the government's scheme we proposed a three-tier scheme which would have, at the first level, allowed pastoralists who want to simply engage in traditional pastoral activities and matters incidental to them to be able to do so. The second level would cut in where a pastoralist wanted to go beyond the traditional pastoral use to engage in activities like intensive cropping, land clearance, gravel taking or the like. Here a system would have been put in place to have allowed for notification, good faith processes, a capacity for representatives bodies and claimants group to make representations and a process which would have made it clear that permitted diversification activities would not include a major regional irrigation project like the Fitzroy River scheme.Diversification would not be permitted if it meant the dominant purpose of the lease was no longer pastoral. It would have ensured that suppression and suspension rather than extinguishment and compensation would have been available. That was a much fairer scheme than the one proposed by the government and the one that was passed by the Senate last December.A third level under our scheme would have been for those pastoralists who sought formal upgrading of title to, for instance, a perpetual lease or freehold type status. Here the full impact of the Native Title Act processes would have come into play. That scheme did not get sufficient support in the Senate last year. As a consequence, we are now having to face the reality of the government's proposal.The government's amendments have some attraction to us because, once again, they are an incremental improvement on what was passed by the Senate last year—incremental in the full meaning of the word. We have some concerns with respect to some of the amendments. Our amendments to the government amendments fall particularly in respect of permitting primary production pastoral diversification. The government amendments do not discriminate between those people who have a right to undertake the activity which is covered by the primary production definition and those who do not. Our concern is that this creates a windfall gain to some leaseholders at the expense of native title holders.Our amendments N14 and N15 correct the drafting errors in Harradine 7 which was accepted by the Senate last time. The purpose of that amendment was to prevent pastoral diversification except where the activity would have been permissible under the lease or legislation governing the lease before 23 December 1996. If the activity required authority the authority would have been lawfully given prior to that date. That is the impact of those two amendments. We split Senator Harradine's amendment in order for it to achieve its intent, so we believe.With respect to the government's definition of a right to mine, this government amendment amends the definition of a right to mine in the Native Title Act by excluding the extraction of sand, gravel, rock and soil from the natural surface of the land or the bed or subsoil beneath water so long as the extraction is not for the purpose of obtaining minerals. Hence this would result in such activities being excluded from the right to negotiate which previously may have come within the definition of quarrying. The full impact of this definition is difficult to gauge as the definition of quarry does vary from state to state.We are concerned that there are problems faced due to the exclusion of mining when some of the activity contained in 24GE(1)(e) comes within the definition of the right to mine in section 253. In essence, what we are seeking to do with our amendment is restore 24GE to its original intent without placing restrictions on the right to negotiate. We provide that the more limited definition of a right to mine will apply only for the purposes of 24GE. There are some amendments from Senator Harradine which we will support.I go back to the point I made earlier. This is one of those areas where there would be deprivation or acquisition of native title rights and interests in a way that sufficient notice and process is not provided for under this legislation. This is one case, for instance, where the government goes much further than what the Wik case would have given pastoralists had it been decided in their favour. It is a case where you would have constitutional problems and the burden would fall on the Australian taxpayer.For that reason, we did put up a scheme last time. We realise that we will not be successful in putting up the alternative scheme this time, but we will maintain an interest in this because some of our amendments will improve the government amendments as well. Senator Minchin, I think it is fair to say that our amendments to your amendments are minor, but we will have the specific debate on them as we approach them all seriatim.16:51:002201Brown, Sen BobSenator BROWNQD4TASAG00—This section on primary production is extraordinarily important. It is the heartland of the debate that we are undertaking. It is the heartland of the decision as to whether this country is going to extend to the indigenous people, the first Australians, their right to have a say on their land or whether it is going to steal that right from them. That is the question that we are about to deal with.We have previously dealt with the right of people to access their land and we have truncated that. The debate now moves on to the question of those persons who have been able to establish a claim to land because it is the land of their ancestors and being able to have a say in what happens to that land forever more. What the government's legislation does is cut down that say in its tracks. It is a wholesale robbery of the rights of the indigenous people of this country. `Nugget' Coombs, the great Australian who died so recently, said:In taking the land, we did not merely deprive Aborigines of property. We also took the source of their livelihood, the very foundation of their society, the basis of the rights and obligations on which it was built, and above all the source of the religious convictions which gave purpose and justification to their lives.Galarrwuy Yunupingu, in commenting on this legislation we are now dealing with, said:This is the final drive. This is the revisit to our waterhole to poison it yet again. This is rounding up Aboriginal people into the valley and a final shoot-out. This is the killing of Aboriginal men, women and children one by one . . . Our right must not be taken away ever . . . Without this right—that is, the determination of what happens on the land—we will not maintain and practise what we practise now. We will be like a dead leaf in a river that floats up and down in the stream. We will be a bird that flies freely up in the sky with no foundation, with no law, with no song, with no story.Yet that is what we are being asked to do by the Howard government here this afternoon, to cut the rights of the indigenous people from their land. What this section is saying is: if we do give a token acknowledgment of the ancient connection of the indigenous people of this country to their land, we will take it no further than that. As this nation looks into the next century and the next millennium, knowing that the whole face of northern Australia in particular is going to be changed by so-called development, what this legislation says to the first Australians is: we will cut you out from a say in that change of the face of this country. It is not good enough for Senator Minchin or anybody else to sit there and shake his head. That is what this is doing. He can get up and quibble with this if he wants to.Let me just enumerate what this does, the uses of the land which this permits with no right to negotiate by the original people whose land it is. I can best do that by repeating the story of the trip to the Kimberley recently with the Bunuba people and spending a week floating down the mighty Fitzroy River in the wet through four magnificent gorges and hundreds of kilometres of woodland lined rivers and tributaries full of natural wildlife, ecosystems intact—extraordinary, magnificent country by any world standards—and watching the relationship of those people with their ancient lands and with that wildlife and with that mighty river that gives life to their country.When we came to the major downstream gorge called Diamond Gorge in European terms, they pointed to the place where a great dam is about to be built which will flood a greater area of the Fitzroy country than Lake Argyle on the nearby Ord. The water from that is going to be canalled 300 kilometres to near Broome to establish and irrigate some hundreds of thousands of hectares of cotton crops on the plains to the east and south of Broome. Of course the consequences of that will be chemical flows back into the water system downstream towards King Sound and the world's greatest oyster pearl resource.That aside, what I had to sadly tell my host from the Bunuba people was that under this legislation and, moreover, under Labor Party policy as well as—under a Beazley or a Howard government—when it comes to that dam you will have no say; when it comes to that canal you will have no rights; and when it comes to those cotton crops you will not be able to negotiate. Moreover, to other clans of indigenous people across this country, if the woodchippers move in on their woodlands like in Cape York—it has already been mooted in the past—they will have no say against that woodchipping operation.If other smart money from anywhere comes and says, `How about a broadacre plantation?'—the sort you see dotted all over indigenous people's lands in central America, for example, and in South-East Asia and in Indonesia—under this legislation the indigenous people of this country have no right to negotiate. The same applies to roads, fences, quarries, as we have just heard, to certain forms of mining like opal and gold, and farm stay tourism—a whole range of developments which are going to change the face of the land and the waterways and indeed include in this deep sea fisheries, although it is not in this section.The indigenous people of this country do not get a little say. They do not get a big say. They get no say at all. They get cut out of their say. Senator Harradine said only yesterday in this debate, `I am not prepared to see a reduction in the common law rights of the Aboriginals to their lands.' Well he, for one, will have to vote, if he is true to his word, for the Greens/Democrat amendment which restores those rights, that right to negotiate which flows out of the common law right to the land. It is no good saying that we recognise your attachment to the land and then say but we will give you no right to have a say in what happens to it. That is what is being mooted here.In a paper, which I might send to Senator Harradine so that he will understand the position, under the heading `The social and economic significance of the Right to Negotiate' ATSIC said:The significance of the removal of the Right to Negotiate from pastoral leases lies in the extent of the land covered by pastoral leases, and the continuing association with, and attachment to, such land by Aboriginal people.Although Aboriginal people have sometimes been able to live on or visit their traditional country on pastoral leases (such access rights are to some degree legal requirements— It names three states. It continues:. . . they have until now been effectively excluded from any decision making about what is to happen to their country.As a result, Aboriginal people have often not benefited by development of their land in terms of employment, training and income generation. The almost total marginalisation of Aboriginal people from development on their own land has caused great distress to Aboriginal people and resulted in serious health and social problems.If the cycle of poverty, unemployment and alienation is to be broken it can only be through active partnership in development of native title land.Let me intervene there to repudiate a minister of the Northern Territory government who said today, `No, we'll put money into social welfare for indigenous people. That's what we've got to do.' That is a failed prescription. We have to understand that to give the indigenous people their rights is to give them their health, is to give them their dignity. ATSIC continues:Such partnership must be based on recognition of native title and the right for indigenous people to have a real say in what happens.This move by the government cuts out that right. In doing so, it causes that alienation and unemployment and all the problems that flow from it. A paper of the National Indigenous Working Group said:On 30 October 1996, a bipartisan resolution was carried unanimously in the Commonwealth Parliament on the motion of the Prime Minister. The resolution stated that "This Parliament reaffirms its commitment to the right of all Australians to enjoy equal rights and be treated with equal respect regardless of race, colour, creed or origin." Extinguishment of one group's common law rights on the basis of race will violate this historic commitment—So does the extinguishment of the right to negotiate and have a say in what happens to that land. It is effectively the same. It is to say, `We recognise your attachment, but we deny you any right to have any say in that land, in that future.'Instead of that, what we are being asked to entertain here is the giving of those rights across to the lessees of this land, including, of course, the likes of the Sultan of Brunei, Mr Kerry Packer and a number of other people who have extraordinary rights on this planet through their power and wealth and against whom the extinguishment of rights of indigenous people through this legislation is an obscenity. This taking away of the right to negotiate is an obscenity. It will be the cause of great trouble further down the line, unless we address it.Let me finish this part of my contribution by reading from a letter which, I understand, was sent to Senator Harradine today from the Governing Committee and Native Title Holders of the Miriuwung and Gajerrong Families Heritage and Land Council at Kununurra. The letter is signed by seven members of that committee. It says:The Council writes—On the passing of native title; this bill—to register the stark facts of the matter now before you in the Senate.This Council has just completed its Native Title Claim process through the Federal Court. After the WA, NT and Federal Govts forced our old people to prove what they have always known to be primordial rights to country, why do we now exhausted by this process and the savagery of the white man's unsuccessful attempts at dispossession, now have to find that the verdict is stolen by white men changing their . . . rules.They thought they were getting access to their lands. Here the rules are being changed. You can hear the anger in this letter. And we should take note. This committee says:The verdict: Australian Government—Winners Traditional Owners—Losers forever.That is how they are seeing it out in the bush. That is how the indigenous people of this country are seeing it. The letter further says:We cannot give any more ground on this issue. Please do not give the Government its chance to destroy our children's lives forever.That is a plea from the heart that this committee must hear.17:06:002203Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I support government amendments Nos 24 and 25. I thought the opposition was going to move an amendment—N19—to government amendment 26.XE4BOLKUSSenator Bolkus—That's right.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Senator Harradine, are you suggesting that you would like 24 and 25 put together?6H4Harradine, Sen BrianSenator HARRADINE—Yes.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—I shall do that. The question is that government amendments 24 and 25 be agreed to.Question resolved in the affirmative.17:06:002203Bolkus, Sen NickSenator BOLKUSXE4SAALP00—In respect of government amendment 26, I move:After "but", insert ", for the purposes of section 24GE,".As I said earlier, the concern of the opposition is that, for the purposes of 24GE, the government has a different definition of mining. It is a bit more limited than otherwise applies, as a consequence of which some activities which one would normally see as mining would not come under the definition of mining and as such would not attract the right to negotiate. We are trying to amend the government's amendment No. 26 to restore 24GE to its original intent without placing restrictions on the right to negotiate. Basically we are saying that the more limited definition of a right to mine will apply only for the purposes of 24GE and it will not be taken to be the definition for any purpose wider than the purpose of 24GE. I hope people can understand that.17:08:002203Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—We have moved our amendment No. 26 for the purpose of ensuring that quarrying does come within the definition of `mine' but to make it clear that there is a clear definition of mining to ensure that quarrying is included, but at the same time that mining does not include the matters listed in amendment 26:. . . extract, obtaining or remove sand, gravel, rocks or soil from the natural surface of land, or of the bed beneath the waters, for a purpose other than:(d) extracting, producing or refining minerals from the sand, gravel, rocks or soil; or(e) processing the sand, gravel, rocks or soil by non-mechanical means.We are trying to ensure that the 24GE arrangement covers the pastoral lessee who is often the one wanting sand or gravel to make their own roads or whatever, and that the lessee does not get caught up in the whole right to negotiate process, which, if you accept the ALP amendment, could be the consequence. These sorts of activities on pastoral leases are going on now, and we set up a process by which they can happen in the future, which involves notification, comment, compensation, non-extinguishment and everything else, but you cannot contemplate these sorts of activities on pastoral leases, this sort of low level extraction of gravel and sand, getting caught up in the whole hifalutin right to negotiate process.We do make it clear that quarrying as such is covered by the right to negotiate process but not these others sorts of low level, non-quarrying activities on pastoral leases. So our concern about the ALP amendment N19 to our amendment is that it potentially leaves open the possibility that those sorts of activities could come within the definition of mining, depending on the interpretation of a court, and then get caught up in the whole right to negotiate process, which would be completely contrary to government policy.17:10:002204Bolkus, Sen NickSenator BOLKUSXE4SAALP00—The concern that the opposition has is, I suppose, about amendment creep. With every amendment the government puts up, an extra slice is taken off the right to negotiate or native title. What we say here is: allow this definition for 24GE. I acknowledge that in some state and territory jurisdictions what you are trying to exclude from the right to mine here is, in fact, a mining operation. Whether it is extraction of `sand, gravel, et cetera from the natural surface of land, or of the bed beneath waters' it does sometimes amount to a mining operation.This amendment needs to be seen together with Senator Harradine's amendment, which does allow a continuation of activities that were allowable as of 23 December 1996. So this should not be treated in isolation, but also we should not allow here, as I say, amendment creep to take a bit more off native title claimants.17:11:002204Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—It is not a matter of amendment creep. This was to make it quite clear that quarrying came within the definition of mine. We just wanted to make it absolutely clear what mining was and what it was not—that quarrying is included, but the sorts of extractions which do not involve producing or refining minerals, or processing it by non-mechanical means, are not included—so that there is no doubt.Throughout this process we are trying to deliver certainty so that we do not have everybody ending up in court arguing about all these things, which is what this area can so easily become and what it has become after four years experience. It is essential that we deliver certainty. We want a certain definition of what mining is and is not. This is what this delivers. It is fair and sensible. It does ensure that anything that is obviously commercial, or the extraction of minerals or quarrying as such, is covered by the definition of mine and therefore the right to negotiate but, otherwise, where it is this sort of low level activity on a pastoral lease, it is clearly not covered, which is what I would have thought we would all want to achieve.17:12:002204Bolkus, Sen NickSenator BOLKUSXE4SAALP00—We must keep in mind that what we are talking about here is the right of pastoralists and the extent to which they may be able to diversify. We are not talking about mining operations; we are talking about what extension can be made available to a pastoral activity. It is going to take a long stretch of the imagination to allow some of these things in. You are getting away with most of them, but we just take the point here that, together with Senator Harradine's amendment, we provide sufficient scope for diversification.17:13:002204Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I just want to make it clear that this has to be read in conjunction with amendment No. 25. In other words, where rights on pastoral leases to third parties—which may include the lessee—under No. 25, which I think we have accepted, can include the right of a lessee to extract, obtain or remove sand, gravel, rocks, soil or other resources, except so far as doing so constitutes mining, consequentially we seek to amend the definition of mining to make clear that mining includes quarrying, but not those sorts of extractions which we have referred to in No. 25. They are defined in such a way as to make clear what the threshold is beyond which things become mining and therefore would be covered, but below which they are not and are therefore picked up in No. 25.So we have done this in good faith in discussions to make sure that quarrying has not somehow slipped through the net through, as you say, amendment creep. Quarrying is there and is covered but, to make it clear that in compliance with what we want to allow to continue on pastoral leases, particularly where it involves a lessee and it is very low level extraction, that can continue without accidentally or consequentially attracting the right to negotiate.17:15:002205Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I am getting to the stage where I am sorry I mentioned the word `quarrying' on the last occasion that we were debating this matter. My mention of that was in respect of 26A, explorations and mining. That is why I raised the question of quarrying. I feel that now what the government has done in amendment 26 is to have a definition of mining which is not appropriate and does not follow from what I was saying on the last occasion. I intend to support the amendment put forward by Senator Bolkus and for the reasons that he mentioned.17:15:002205Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—This does flow from what Senator Harradine talked about in relation to quarrying in the section 26A regime. Because that was raised and because we have covered that, it is suggested that, in relation to this regime, as to granting rights to third parties and what they could and could not do, and to make it clear that, to the extent that it amounted to quarrying, it could not be covered and would not amount to the sort of activity that could be done on a pastoral lease. So it is a very clear definition of what is and is not quarrying. The reason we are doing this—and I would have thought that it would be acceptable to everybody—is that it does flow from our discussions over the 26A issue. So we would support it.The trouble with the opposition's amendment is that it potentially leaves it to courts to decide what is mining and what is not and the arguments that flow from that, and the legal bunfight that we then have. We think it much better that the act be absolutely clear as to what is mining and what is not mining and not leave that to courts.Amendment (Senator Bolkus's) agreed to.Amendment (Senator Minchin's), as amended, agreed to.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Senator Brown, are you moving your amendments 2 to 5?17:17:002205Brown, Sen BobSenator BROWNQD4TASAG00—I can inform you, Chair, that it will be amendments 2 and 3 only. Amendments 4 and 5 relate to water rights and they come in another section further down the line. I would like to suggest to the committee that the Democrat-Greens (WA) amendment to oppose section 43A subdivision G, which has been put to the bottom of this sheet, be taken first. It would seem logical that we should not go through the process of amending subdivision G and then move a motion which will knock the lot out. We should move the motion to remove subdivision G first, which would inherently remove the need for amendment. That is how it was on the last running sheet and I suggest to the committee that that is the logical way to keep it.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Does the committee agree to that? There seems to be assent to that, Senator Brown. The question is that schedule 1, item 9, subdivision G, as amended, stand as printed.QD4Brown, Sen BobSenator BROWN—We oppose subdivision G because this is essentially a hit list of the whole panoply of developmental options which are going to change the land of the indigenous people and remove their right. It lists, one after the other, a whole range of things that can happen on leasehold land, with the indigenous people having no say at all. This is the heart of this matter. I say again to the committee, this is legalised theft. We have had the stolen lands, we have had the stolen generation, now we have the stolen rights. For the first time, here is a Commonwealth parliament tempted to give assent to that tragic move to yet again thieve from the indigenous people of this country.It is not a light matter. This is a comprehensive theft of the rights of the indigenous people to have a say in their future on their land. Essentially, it means that on these lands any development will do, with holes in the ground—mining—excluded, and then with some exceptions. You have no say in any development, broad scale or small, which comes on your lands because the parliament in 1998 passed an act which took away those rights. If somebody in the Labor Party or one of the two Independents, or more importantly somebody in the government can get up and say that that is wrong, let them do so and let them explain it.I suspect we are going to get a very short debate on this. We are going to get another period of silence, of non-response, of heads down. There should be a lot of shame going along with that. We in this small corner of the Senate are not going to be accomplices in this theft of the rights of the indigenous people. There is nothing in here truncating the rights of the leaseholders. There is nothing here to say that you cannot, in the future, with state government assent, essentially upgrade your cattle grazing rights to any form of development that may be lucrative in the future. That is not written in here. This is not fair and even-handed.What is written in here is what the indigenous people have no say in. It is a big, thick section. It reads like a list of everything you could imagine happening to their land in the coming decades, in the coming centuries—everything that they, their children, their grandchildren and their grandchildren's children may not want to happen to their land.What are we doing in this legislation? We are saying, `You have no right. You have no say. We are stealing that right.' That moment of injustice is now upon this chamber. I charge everybody in this place to think about how history is going to treat this moment, because I think it will treat it no less well than it has treated the ravages on the indigenous people of this country in the past. You may say, `Well, this is not taking guns out. This is not putting poison in waterholes. This is not taking children from their mother's arms.' But I say this is taking their heart. This is taking their bond with the land and each other. This is taking their dignity. If we call ourselves a proud and decent nation, I cannot understand how this legislation got into this place, let alone be on the threshold of being passed by the power of the numbers of the big parties in here. I find it even less easy to contemplate how it could be that in a democracy we are in the position, whoever wins the next government—whether it be a Howard or a Beazley government—where those rights will be taken away because that is the policy of both parties. You would expect on a monumental issue like this that the people would have an option, that there would be an opposition with the potential for government to stop what is happening here, but there is not. This is an historic failure of people elected to power to represent this nation and its best interests for the future. I can say this: in those letters coming to us such as the one from the Kununurra people which I read out earlier, there is now an anger. Resignation has moved to anger, which should be noted. It is not going to be good enough further down the line when turmoil comes out of this legislation, be it at the Olympics or be it further down the path, for us to throw up our hands and say, `This is unfair. This is ruining our international reputation. This is not good for our feeling of pride as Australians,' because this representative parliament is doing this today. We cannot shrug our shoulders this time. We are doing it with our eyes wide open. The great political parties of the day are the driving force behind this. It has been left to the so-called minor parties—the Greens, the Democrats—to show the other side of the coin in this argument, to represent a wider and more open view of the rights of the first Australians and the interests for the long term of this country for succeeding generations. I might add that it is a matter also of environmental prudence that we are dealing with here. If we are really concerned about the environment of this country—the future of the Fitzroy River, the future of the coastlines, the mangroves, the wildlife and the beauty—the best custodians we can have in charge of management with a say in what happens in the future are the indigenous people. Their record is there for us to see. At the very least the spin-off for all of us would be a brake on the destruction that will occur to the environment through untoward land use in the future. But instead of building in that brake that we know will work, we are here putting the foot on the accelerator and removing the safeguard, removing the seat belt for this nation's environment.We do not even have the Minister for the Environment in this place, and never have had at any stage of this debate. He ought to be here standing up for the environment. He ought to be here making sure that safeguards are built into the massive changes which will happen when these so-called upgrades of these leases are allowed and, beyond the determination of Wik and the High Court, when massive alternative uses of the land besides cattle grazing occur right across this country in the future.That is why the Democrats and the Greens have said, `Let's knock out this list of rights' removal of the indigenous people of this country. Let's take out this evil kernel in this 10-point plan. Let's shell it out in one go by knocking out subdivision G,' as it is called—it might better be called subversion G—`when it comes to the rights of the indigenous people of this country.' That is why we will be opposing this subdivision and voting against it.17:30:002207Boswell, Sen RonaldSenator BOSWELLYE4QLDNP10—I have to respond to some of Senator Brown's statements. The fact that the Greens and the Democrats are going to knockout all the subdivision on primary production shows that they have little understanding of the needs of primary producers. It is all right to talk about the environment and it is all right to talk about certain rights but, Senator Brown, you are speaking about the disappointment of the Aboriginal people when there is disappointment all round in this legislation.There are no winners in this legislation. The mining industry is not jumping for joy. Members of the pastoral industry, who thought they had complete use of their tenure, now have to eat humble pie and recognise that there are other people who will have some rights and will share their properties. It is a bitter pill for them to swallow too; you must recognise that. They had paid for their properties, they had inherited their properties, they did not take their properties from anywhere—and in most cases they are still paying for their properties. In most places at the moment, they are not making any money out of their properties and they hanging on by their fingernails, so they are disappointed.As I said, there are no winners in this legislation: there are three losers. We have to manage this in the best way possible. Primary producers require some certainty. They have to keep up with changes in technology and move with the times. By removing this subdivision from the legislation, you are putting a heavy penalty on people being able to manage their properties. They have always been great improvisers in the bush. For instance, if the wool industry collapses, they take in a bit of farm tourism to balance the books. I do not see that it is going to hurt Aboriginal people having people staying in the shearing shed. It is not going to take away their rights.Senator Brown, you have to recognise that, and I know that you do not, and you are out on one wing of the debate. You are a doctor, and you are obviously a clever person. You have the ability to earn $80,000, $90,000 or $100,000 a year. Many people in regional Australia do not have the capacity to get a job unless there is a viable and moveable primary industry which can compete. You are sitting there with your obvious mental capacity that can earn a lot of money, but you have to consider that other people do not have your capacity—people like kangaroos shooters or tractor drivers—and you are ignoring them.Agriculture employs some 358,000 Australians. The food processing industry employs 181,000 people—blue-collar workers in the main. These blue-collar workers get their jobs from the products off the farms or the stations. Primary producers have to be able to respond to new technology. They have to respond to new methods of production, cultivation and marketing. If this amendment is carried, it will tie them up. It is not going to affect you; you will get your $100,000 a year, or whatever you can get as a medico or a politician. However, you have to consider that there are many Australians who are blue-collar workers who depend on farmers and the cattle industry for their jobs. Many hundreds of thousands of people are employed in abattoirs or Golden Circle or whatever. They are low-income earning people.By not giving people the right to change direction, to change technology, to change from growing cattle to growing cotton, grapes or something else, you are taking away the rights of these people to earn a living. An Aboriginal lady whom I respect highly said to me, `There is no dignity in welfare.' What you are doing by this amendment is condemning a lot of people to welfare.Let's get a bit of balance in this debate. Primary industry and the mining industry provide many jobs. Of course we have to recognise the environment—and this bill does recognise the rights of indigenous people—but there is no balance in this debate. Let's see if we can get back to a debate that considers all the people in Australia.17:35:002208Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I want to respond to Senator Boswell. I agree with a lot of what he says. I am one of the few people in this place who actually carries both the native title and the rural portfolios. I am responding more to what Senator Boswell is feeling than what said. One thing he said was, I think, incorrect and I would like to correct it. I hear what you are saying, Senator Boswell, and I know the agony of trying to balance these competing interests. Could I just clarify: are we presently debating Senator Brown's amendments Nos 2 to 5?10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Crowley)—No. The question is that schedule 1, item 9, subdivision G, as amended, stand as printed.HX5Woodley, Sen JohnSenator WOODLEY—Thank you. I want to speak a little bit longer than I would have in responding to Senator Boswell. Senator Boswell, although we are removing this section, it is not to knock it out; it is to replace it with other definitions, because we believe that the definition as given by the government is far too wide and goes way beyond any understanding of what normal pastoral activity would entail, even if it does extend to farmstay tourism, et cetera. With the amendment, we want to redefine the whole notion of pastoral activity.The purpose of this group of amendments proposed by the Democrats and Greens is to replace the government's wide primary production definition with a definition which allows pastoralists to continue their pastoral enterprises and some related diversification without the requirement of negotiation with native title holders. These amendments also add some restrictions to the scope of farmstay tourism; reverse the government's position of not allowing compensation for activities, as opposed to grants, which may impair native title; remove the extension of permissible primary production to off-farm activities; and remove the provisions relating to the granting of rights to third parties on non-exclusive leases.We will have to move through the group of amendments because they have different questions and, therefore, different answers. I will speak to all of them rather than simply to the particular amendment we are looking at now. If I speak to every one, we will be here not until Easter is finished but until Christmas.In broad terms, the 10-point plan validates the authorisation of primary production activities, including farmstay tourism, on non-exclusive agricultural pastoral leases granted before the Wik decision. The problem with this proposal is that it completely denies the essence of the Wik decision, in our opinion. The Wik decision said that there were pastoralists' rights, certainly, and, where indigenous rights conflict, the pastoralists' rights will prevail. It does not mean that farmers cannot do what they need to do to sustain their properties or businesses. All of the indigenous people to whom I have ever spoken certainly want that. They do not want to take away farmers' rights at all, and they certainly want pastoral activity to continue.It also does not mean that they have to negotiate every time with Aborigines—that is, every time they want to sink a dam or do some of the normal pastoral activities. Senator Minchin, although you keep saying that, it does not make it so. The Wik decision does say that indigenous people cannot be simply ignored any more. It means they have rights too, and they cannot simply be walked over or ploughed through anymore. The government's proposal, as contained in the bill, is a way of walking over the valid rights and aspirations of indigenous people, and it is done under the heading of `Primary production', or diversification. In some ways, if we accept the government's proposals, it will be more like primary discrimination. At this point, it is important to read into Hansard the wisdom of the Ngarinyin people.Senator Boswell interjecting—HX5Woodley, Sen JohnSenator WOODLEY—I do have problems sometimes with some of these pronunciations, Senator Boswell. I am sure you do too. I want to read into Hansard their wisdom. In responding to the Wik decision, they said:We can embrace pastoralists and their cattle in our land. We have no problem with that. We can negotiate our native title rights. That is no problem either. We can negotiate access and movement around their leases—gates, roads, rubbish, all of those things. What we cannot do is allow our identity and the birthright of our identity to be rubbed out. No human beings on earth can allow that. None.That just about says it all. In conclusion, I would like to say that Australian Democrats agree with that sentiment, and I do so in view of the terrible outcome that occurred last night regarding the physical connection test. No senator can take away that right either, whatever their political persuasion or their Independent standing.17:42:002209Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—We spoke at great length on all these matters back in November-December and have been speaking about them publicly and privately ever since. There is not much I really want to add, except that the Greens amendment takes out the whole future act regime regarding primary production and, in effect, leaves nothing in its place, which is completely inadequate. The Democrat amendments try to put some sort of regime in place which we believe would be completely unworkable.The history of this is that, when the Native Title Act was written, it was clearly written on a presumption that there was no native title on pastoral leases, and we were talking about vacant Crown land and Aboriginal land. As a result, a $1.3 billion indigenous land fund was set up to enable Aboriginal people to buy $45 million worth of pastoral leases every year forever, and Noel Pearson went out and said, `We're not making any claims on pastoral leases. That would be quite futile.'To everyone's surprise, the High Court held by 4-3 that, on the pastoral lease in question in Wik, native title may not necessarily have been extinguished—but even there they do not have native title yet. That is still to be determined by the Federal Court. On the face of it, it is going to be case by case and depend on the terms and conditions of the lease. It could well be, even as a result of Wik, that no native title is found on any pastoral lease anywhere. It still remains possible, of course. It is up to the courts to decide whether or not the lease itself does extinguish and whether the legislation on which it is granted allows that extinguishment.Of course, they went on to say, `If any native title has survived, it is subject to the rights of the pastoralists.' As a matter of common law, governments can issue statutory grants enabling activity on those leases. To the extent the grant is inconsistent, it extinguishes. If it is not inconsistent, it prevails. There is a break on the common law. The common law made it quite clear that governments had the authority until then to extinguish native title right across the country. They have not done that. Following Wik, at common law, they could, but they are restricted at the state level by the RDA and now by the application of the NTA, but the NTA does not include any future act regime for primary production because it was never thought that it would have to.We need a future act regime for primary production, for the 40 per cent of Australia on which native title could potentially have survived and which would affect every single person who farms, grazes cattle or whatever they are doing on that 40 per cent of Australia. There has to be a workable future act regime, given our decision that we would not extinguish native title on pastoral leases. I believe we have gone to quite extraordinary lengths to make sure that farmers can get on with their businesses but do so in a way that does not extinguish native title. By and large, the non-extinguishment principle applies and compensation is payable to the extent that there is impairment.When you go beyond a certain limit, if it involves mining or compulsory acquisition you get all the rights that the pastoralist has in respect of future mining on that pastoral lease land. So it is not true to go around saying that they do not get a say; they do. They get as big a say as the lessee, who has the statutory rights which the High Court said prevail. So let us stick to the facts and what is actually in the bill.We believe this is the only workable, sensible regime for ensuring that primary production activities, which is a huge multibillion dollar industry in Australia, can continue sensibly. At the same time we acknowledge the possibility that, as a matter of common law, native title may have survived and where it has it is properly respected not to be extinguished except by agreement or compulsory acquisition, compensation is payable and, depending upon the level of activity, there is the appropriate ability for native title claimants and holders to participate in decision making as to those activities. So this is, in our view, the only sensible regime to accommodate that 4-3 decision of the High Court into the statutory law of Australia regarding pastoral leases.17:46:002210Bolkus, Sen NickSenator BOLKUSXE4SAALP00—Briefly, as I said earlier on in the debate, the opposition has immense problems with the government's scheme. We put up our own scheme in the debate last time. It was a very comprehensive alternative which did not find favour in the Senate. We did not support this particular proposal last time and we do not propose to support it now.17:46:002210Brown, Sen BobSenator BROWNQD4TASAG00—I want to make a couple of things clear. One is that this proposal does not take away the lease rights that have been granted to people on that 40 per cent of land, which is essentially for cattle grazing, and nor did the High Court. As we know from repeated endorsement of the High Court's ruling, where there are leaseholder's rights and there are indigenous rights, the leaseholder's rights prevail. I happen to think that is a pretty horrendous judgment for the indigenous people to have to wear, but there it is.We also all know that there are going to be massive developments on those leaseholdings. We know from the debate in Queensland and Western Australia that there are moves afoot to allow those leaseholdings for cattle grazing to be upgraded—that is the word—into essentially private ownership freehold status where anything goes, and anything will go. There are going to be massive changes to those lands.C16HEFFERNANSenator Heffernan—Rubbish!QD4Brown, Sen BobSenator BROWN—It is not rubbish, Senator Heffernan.C16HEFFERNANSenator Heffernan—Of course it is.QD4Brown, Sen BobSenator BROWN—Then you may get up and have your say if it is. The fact is there are going to be massive changes to that land and the indigenous people through this particular section are going to have no say. That is the problem. There are people like the remarkable Camilla Cowley with grazing interests in western Queensland—YE4BOSWELLSenator Boswell—Sitting on freehold property.QD4Brown, Sen BobSenator BROWN—Yes, that is right; she is sitting on freehold property. Those people have shown the lie, if you like, to another contention that you had, Senator Boswell—that is, that indigenous people want to somehow stop the leasehold activities of farmers across Australia.YE4BOSWELLSenator Boswell—I never said that.QD4Brown, Sen BobSenator BROWN—Then I am glad that we are agreeing on this. But they won't.YE4BOSWELLSenator Boswell—But I never said that.QD4Brown, Sen BobSenator BROWN—I accept that, Senator Boswell. We are in agreement; they are not going to do that. So the fear you have that in some way or other indigenous people are going to or have caused some impediment to those rights that the leaseholders have under their leases is unfounded.The fear has come in where the wealthier people in particular—and many of them are absentee leaseholders—have the money to invest in major changes to the land in the future and the indigenous people get cut out and do not have a say. It is not as if they are being cut out of a part of the profitability of those developments—and I would submit that they ought not be cut out from such profitability—they are even going to be cut out from having a say, for goodness sake. That is the problem. That is the horror of what we are enacting here. We will reap the whirlwind of that.We as a nation are going to suffer. Part of our pride in our nation is going to be forever tarnished while this stays on the books. That is why it is very important that we understand that we are not trying to derogate from leaseholders' rights; we are trying to say that, if you are going to upgrade and open the doors to massive changes to these lands which the indigenous people hold in their hearts as part of themselves, give the indigenous people a say. This legislation cuts out that say. That is why we are opposed to it.10000CHAIRMANThe CHAIRMAN—The question is that schedule 1, item 9, subdivision G, as amended, be agreed to. Question put.17:55:00The committee divided. (The Chairman—Senator S. M. West)48Abetz, 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. Conroy, S.Cook, P. F. S. Coonan, H.Crane, W. Crowley, R. A.Denman, K. J. Eggleston, A.Ferguson, A. B. Ferris, J.Forshaw, M. G. Gibson, B. F.Harradine, B. Heffernan, W. *Hill, R. M. Hogg, J.Kemp, R. Lundy, K.Macdonald, I. 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.Reid, M. E. Reynolds, M.Schacht, C. C. Sherry, N.Synon, K. M. Tambling, G. E. 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.17:59:002211Brown, Sen BobSenator BROWNQD4TASAG00—I move:(2) Schedule 1, item 9, page 49 (after line 3), at the end of section 24GA, add:Large dams and irrigation excluded (3) The expression primary production activity does not include dams with a water storage capacity exceeding 10,000 megalitres and associated canals, channels and irrigation development.(3) Schedule 1, item 9, page 55 (line 22), after "mining", insert "and except where the resource is water from a dam with a water storage capacity exceeding 10,000 megalitres".These are the Fitzroy River amendments. I have referred in committee to the proposal for a giant dam on the Fitzroy River in the Kimberley, bigger than the Ord River scheme. It will flood huge reaches of the river, nearby plains and savanna woodlands, and involves other extensive work.4L6EGGLESTONSenator Eggleston—That's just not true.QD4Brown, Sen BobSenator BROWN—Senator, you will have your opportunity to correct the record if that is not true. The amendment seeks to exclude large dams and irrigation from the big list of upgrades which can occur to land which, in turn, are exempted from indigenous people having a say—in other words, it is a double negative. We want to give indigenous people back their say in dams which have a capacity exceeding 10,000 megalitres or in canals, channels and irrigation developments which come from those dams.We must note how important water is to all of us and, in particular, how important water is to indigenous people around the world. It is the lifeblood of ecosystems upon which all of nature, including human beings, depend. It is essential, beyond the life-giving largesse of rivers, that indigenous people also have a say in the welfare of the environs of those rivers because they are the places of ancient connection.In floating down the Fitzroy River with the Bunuba people in February, on three occasions we came to galleries of paintings—magnificent art on the walls of the gorges, some of which is from recent times but much of which is many thousands of years old. We do not know the effects of dams below such systems. We do know of course that, as in Tasmania with the Derwent scheme, when paintings come into the flood zone they are irrevocably and totally lost. Their cultural significance is destroyed no less than if a bomb hit Westminster Abbey. That is total extinguishment.What we want to do in this legislation is to restore the rights of indigenous people, anywhere in this country where they have their native title established, to be able to negotiate when the dam builders, the canal builders, the cotton growers and the irrigators come along to transform their ancient homelands. Surely that is not too much to ask. Surely they should at least have a say.4L6EGGLESTONSenator Eggleston—Who says they won't?QD4Brown, Sen BobSenator BROWN—I am saying they won't, Senator.4L6EGGLESTONSenator Eggleston—You're wrong.QD4Brown, Sen BobSenator BROWN—I am not wrong. Your legislation is cutting out that right. It is not good enough to say, `Well, a developer will go and talk with indigenous people. We'll leave it to their good nature.' Look what is happening at Jabiluka with the developer there. It does not matter what the indigenous people say. They are getting a uranium mine stuck in the middle of their homelands—the Mirrar people's lands. I can guarantee that no less so we are going to see massive water retention schemes, particularly in northern Australia in the coming decades. Your legislation, Senator, is going to cut out the right of people to have a say in those dams which change their lands, their rivers, their waterways—with massive environmental impacts—forever. This is not to say that they can stop the dams. This is to say that they should have a right to negotiate and come to an agreement. Surely we cannot deny them that.18:04:002212Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—As I understand it, the amendments were motivated by Senator Brown's concern about what may happen in the Fitzroy River. It is probably fair to say that many Australians are concerned about dams which affect some of Australia's great tributaries. I share that innate concern about dam projects which dramatically affect the natural flow of waters into the oceans and the effect on the oceans. We must approach this with extreme caution. In relation to this project, as I understand it, the Western Australian government is so doing. This is only at a feasibility stage. There is no commitment to proceed with this project. I believe that a process is already in place for consultation and the involvement of Aboriginal people in the area as to their views on the feasibility of this. The Western Australian government is, and would be, very sensible to proceed with caution on this project.In terms of the impact of the project and whether the Native Title Act should be the mechanism by which we seek to effect this project, the provisions we are dealing with concern primary production on pastoral leases and allowing pastoralists to get on with their business. A major project of this kind, which would be about the conversion of what is now land primarily used for grazing cattle to intensive cropping and the construction of a dam on a river—not normal dams which are for cattle and sheep to drink from, such as a dam across a river, which is not what this is about—would involve the necessity to acquire all interests in the area concerned.The 24G provisions are all based on the non-extinguishment principle. If there is to be, in a hypothetical world, some conversion of an area from grazing to cotton cropping or whatever, it will necessitate the acquisition of all interests compulsorily or by agreement. That includes any pastoralists who are there whose pastoral leases are resumed, surrendered or acquired in order that a different form of agricultural activity can take place there. All over Australia and throughout the world for centuries agricultural activity on land changes from time to time. If there is a proposal that it changes from grazing to cotton cropping it will involve compulsory acquisition. It will involve the compulsory acquisition of the pastoral lease and the native title rights. They will get the same say on the question of the compulsory acquisition as the lessee who is having his or her lease acquired. So they do have all those procedural rights and full compensation for the acquisition of their native title. A mechanism is established whereby the Aboriginal people involved in any such project will get exactly the same say if it is on a pastoral lease as the lessee. If it is not, if it is vacant Crown land, they will get the right to negotiate.While I understand where you are coming from, this is not the way to achieve your purpose. We believe the concerns you have are covered under the act and that the appropriate level of involvement in the issue is there for Aboriginal people. As I say, if it is vacant Crown land, they will have the right to negotiate; if it is pastoral lease land and an agreement cannot be reached—I would hope that agreement could be reached, but if it is not—and there is a compulsory acquisition of both the lease and the native title rights, then they will get the same procedural rights and full compensation for any acquisition of their native title.Trying to put such a provision under this primary production area is not the way to deal with the issue which you quite properly have some concern about, and I understand that concern. That is dealt with in other provisions.18:08:002213Bolkus, Sen NickSenator BOLKUSXE4SAALP00—This is not the first time that this issue has been before the Senate in this debate. It was before the Senate last time, in a rather more comprehensive manner. I think that needs to be placed on the record.There are problems with Senator Brown's amendment, because I think it has come in late in the day and without due regard for the debate we have had on this issue at the earlier stage. Basic principles of law, Senator Brown, would mean that anything under 10,000 megalitres and associated canals may be given the go-ahead under your proposal, because yours is expressly in respect of those exceeding 10,000 megalitres. There is that direct consequence of what you are trying to do.Let me put it to you that, when we had this debate last time, the opposition moved an amendment which, in effect, covered this particular case, and also covered it more comprehensively. During the debate before Christmas, R63 was an amendment which rewrote section 24GD to provide for future acts which allowed diversification of use of non-exclusive pastoral leases provided that the dominant purpose of the lease remained pastoral. Diversification under major regional irrigation schemes was not included. The amendment that we moved before Christmas provided native title holders with notification of procedural rights when a government authority proposed to do a future act permitting the diversification activities on non-exclusive pastoral leases. Let me go to amendment R63. I will read it for the record. It states that this diversification section does not apply to a future act if:(a) the future act takes place under or as part of a scheme for the development of a region involving a significant change of land use over a large area; and(b) the development involves a more intense use of the land and pastoral activities; and(c) the scheme includes, but is not limited to, activities that are related to or result from water storage or water reticulation.The note below that says:The approval for the use of all or part of a pastoral lease for agricultural purposes as part of a major regional development based on a large dam or irrigation system is an example of an act excluded by this subsection.So we had before us a more comprehensive and more sustainable provision to try to accommodate the problem that you are now trying to fix up, and you voted against it before Christmas. Consistency is important. That was a proposal which more comprehensively did what you are trying to do now.You have come in with this proposal today, late in the debate, and you are asking us to support it, warts and all. I am sorry; we cannot support it, warts and all, because there are warts involved with it. Our proposal that we moved last year did not get support. As a consequence, that protection was not afforded.There are other ways of protecting the scheme that is involved here and those ways, I am sure, will be pursued by many others. Senator Brown, your alternative is the poorer model and we cannot support it, given the fact that it is nowhere near as comprehensive as it needs to be for this protection—not just in respect of the Fitzroy River but in respect of any other such diversification of land use. Unfortunately, we cannot support it but I do ask you, when you come in here with models like this, to keep in mind previous debates.18:12:002214Brown, Sen BobSenator BROWNQD4TASAG00—The amendment has been specifically honed to ensure protection for the indigenous rights to negotiate on big water storage schemes and consequent irrigation projects coming from those schemes. There is no excuse for the ALP to say it lost last time, so it is not going to support this.XE4BOLKUSSenator Bolkus—No, I'm saying this has dangers in it. Can't you understand English?QD4Brown, Sen BobSenator BROWN—If you think it has dangers in it, let us get together to eliminate those dangers and come up with a prescription. I offer to you now to do that, so that we can get a meaningful amendment to ensure that the indigenous people have rights to negotiate on projects like the Fitzroy Dam. Will you accept that offer?18:13:002214Bolkus, Sen NickSenator BOLKUSXE4SAALP00—Senator Brown, our debate would have been much more constructive if you had had a discussion with us before you came in here. If I do a stock-take of your performance over the last 24 hours, what I see is continual frustration. It is very self-indulgent of you—and let me put this on the record—to be able to have the flexibility of flitting in and out of this chamber, coming in and making high sounding speeches and taking up the time of this debate, when others are in here all day trying to work their way through resolutions. At the end of the day, all you have done, apart from make those speeches, is to frustrate a very important item before this committee last night, and that was in respect of the threshold test.Your stand last night has probably done an enormous deal of damage to the stolen generations. Let me put it to you that, in the same way that you want to talk about this now, maybe it would have been more useful for all of us, if you did have concerns such as this, and those expressed last night, if you had worked them out constructively before you came in here. That would help to accelerate the progress of debate, but it might also be in the interests of those people that you claim you want to protect—indigenous Australians. At the end of the day, lots of time is taken up, but your impact on this debate has been basically to the detriment of indigenous Australians by that one vote you took last night—a vote that denies the stolen generations from access to native title claims.That is what I am upset about. I will continue to be upset about that vote and that performance last night. It is not good enough, Senator Brown, to come in here and make high sounding speeches. Spend a bit more time on the homework, spend a bit more time on the consequences of what you are doing and then come in here. I have had enough of you.18:15:002214Brown, Sen BobSenator BROWNQD4TASAG00—There we hear the voice of petulance and the views of a rather disgusting Labor Party, which has empty benches in here and which wags its finger at the Greens and the Democrats because we would not side with the Labor Party in caving in to the weak position of Senator Harradine last night. They may do that, but we are not going to. Senator Bolkus should take some of his own medicine. If you want to dish it out, you should take it as well.Let me reiterate what happened last night. You will need more troops than Senator Schacht if you are going to do better on this, Senator Bolkus. Last night there were three votes. In the first vote we supported the Labor Party's move to ensure the indigenous people's rights. Then there was a vote on Senator Harradine's amendment which moved over very close to the government's position. We knew that and said before the vote that we would not support that amendment because there was a Greens' amendment after that which was stronger than the Labor Party's amendment and does the best by the indigenous people.4J4SCHACHTSenator Schacht—You should have voted for it.QD4Brown, Sen BobSenator BROWN—If we had voted for Senator Harradine's amendment, the Greens' amendment would not have been able to stand. They were in conflict. You have not been in here, Senator Schacht, so you do not understand the process.What happened was that the Labor Party voted with that weak sell-out of Senator Harradine's position of last December. They caved in and went across to that position. They expected the Greens and, I suppose, the Democrats as well—like any good old faction of the Labor Party—to fall into line and to further sell out on the indigenous people. We did not. Let me tell Labor members of this place that we are not going to cave into their form of political pressure.The third vote was the strongest one and was on Senator Margetts's amendment. That would have given the indigenous people the best protection of the lot. What happened? The Labor Party went and voted with the Liberals to vote that down. Senator Harradine was not even in the chamber for that vote. What they did in effect was allow him to escape the need to arbitrate in a situation where the indigenous people would have done best. That is the lie of the land. The Greens and the Democrats were not about to give ground. We did not and we will not. Too much has been given already.Senator Bolkus can get petulant about this and get up and say, `I will not talk with Senator Brown because it is too late to come in here and get together to make sure we give the indigenous people a right to have a say when the dam builders want to put a construction across their magnificent country.' `We will not do that,' says the great Labor Party `because it has been done too fast.' There is no excuse. Tell that to the people in the Kimberley, Senator Bolkus.Here we have an amendment which is going to give them a say and we have the Labor Party saying, `We will vote against it, and we have nothing to offer instead.' If the Greens did not vote the right way last time and have strengthened their resolve—and I do not accept that interpretation, but let us work on that one because that is what Senator Bolkus put forward—why should it be that the Greens move into top gear on this with the Democrats in support and the Labor Party reserves and say, `We will not do it this time. We are caving in on that as well.' That is the situation we have got here.Senator Bolkus will not get away with it. You have no excuse. We are dealing with the rights of people to have a say. This secret project has apparently been given the nod by the Court government behind closed doors in its feasibility stages. Nobody in Western Australia, other than the developers and the cabinet—least of all the Bunuba people or the other indigenous groups in the Kimberley—knows what is in the memorandum of understanding because it has not been released yet. Here we have an opportunity in the federal parliament to give them some say, some leverage. It is not just the government that is saying no to that; it is the Labor Party.I do not care what happened last December. We are here now and being tested here now. What Senator Bolkus is saying in his petulance is, `This is happening too fast. We will not talk with you.' They have their noses out of joint with the Greens because of a vote last night, so they will punish the Bunuba people. That is what is happening.XE4BOLKUSSenator Bolkus—Who did you punish last night—the stolen generation.QD4Brown, Sen BobSenator BROWN—Here is your opportunity to do something about this specific project, Senator Bolkus. You are wimping out on it. The record will show that.18:20:002216Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I must rise to comment on what has been said by Senator Bolkus in this debate just now. If he had chosen to look, the decision to make a principled stand in relation to the threshold test was not something that was plucked out of thin air; it was not something that was cooked up on the spot; it was something that was very carefully considered. I am happy if Senator Bolkus wishes to attack me as well. This was not a decision by one person; this was a decision that was shared by number of people who happen to be sitting in this chamber.The very fact that Senator Bolkus did not argue strongly for his own amendments, the very fact that Senator Bolkus did not use his own ability to take a principled stand and say, `Look, we are not supporting a physical connection test on the threshold and we will stand firm with the other people in the Senate,' is something that Senator Bolkus and his conscience are going to have deal with. The Labor Party will have to deal with their own conscience. Do not come into the Senate chamber and unload something that the Labor Party chose to do.If, by their very lack of consideration for the wider ramifications of their actions, they choose to believe that Aboriginal rights would fall just because they have snapped their fingers, I think they have another think coming. If Labor continue to act like that, they will continue to have to bear the consequences of their actions. They cannot continue to bully indigenous Australians and think they can get away with it, and they did not.18:23:002216Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—It is always hugely entertaining for us on this side to watch the parties of the left fighting among each other, but I do suggest that we move immediately to a vote.18:23:002216Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I was not going to make any further contribution to debate but, Senator Bolkus, I cannot agree with you in terms of last night's debate. You will recall that had we voted in a logical way, as was suggested by the Greens and the Democrats, then we would not have arrived at this situation that you put us in which forced us to vote for Senator Harradine's amendment out of order and in a way which then made it impossible for us to consider the votes in sequence. You and the government decided that was the way it should happen. So you bear as much responsibility for that vote as we do. We are certainly not running away from the fact that we voted as we did.In the end the Indigenous Working Group's amendment was the one that we put and which you voted against. That is the problem. Now don't come and say that somehow or other we took away indigenous rights because we did not vote for the weak Harradine amendment. In the end, the Labor Party voted with the government against the Indigenous Working Group's own amendment, which we put. Question put: That the amendments (Senator Brown's ) be agreed to.18:29:00The 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.46Abetz, E. Bishop, M.Boswell, R. L. D. Brownhill, D. G. C.Campbell, G. Carr, K.Chapman, H. G. P. Collins, J. M. A.Cook, P. F. S. Coonan, H.Crane, W. Crowley, R. A.Denman, K. J. Eggleston, A.Ellison, C. Evans, C. V. *Ferris, J. Forshaw, M. G.Gibson, B. F. Herron, J.Hill, R. M. Hogg, J.Kemp, R. Lightfoot, P. R.Lundy, K. Macdonald, I.Macdonald, S. 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.Reid, M. E. Sherry, N.Synon, K. M. Tambling, G. E. J.Troeth, J. Vanstone, A. E.Watson, J. O. W. West, S. M.Question so resolved in the negative.Sitting suspended from 6.32 p.m. to 7.30 p.m.19:30:002217Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I wish to speak very briefly. I do so in order to refer to media coverage of this debate. It is absolutely essential that the media get things right and have some understanding of what native title is all about. A number of reports in the print and broadcast media this morning concerning my position on the native title threshold were incorrect. These reports stated that the government's threshold test, which requires a traditional physical connection to the land, would inhibit indigenous people in making claims on land where there was not a physical connection. I was accused of caving in to the government on limiting the registration test.These statements show a misunderstanding of the processes for making native title claims under the Native Title Act, as it is proposed to be amended by the government bill. It is important to appreciate that under the Native Title Act, as amended, there would be a two-track regime. One track would involve the filing of an application in the Federal Court for a determination that native title exists in respect of particular land. The second track would involve the passing of that application to the national Native Title Tribunal, where the registrar would decide whether or not the application should be included in the register of native title claims. If the registrar decided to register the application, then the native title claimants would obtain the benefits of right to negotiate and statutory access to the land. It is only in respect of this second track that the threshold test would require there to be, or to have been, a traditional physical connection. That part of the threshold test would not apply to the first track, so that even in circumstances where the native title claimants were unable to satisfy the traditional physical connection test, their claims for determination of native title in respect of their traditional lands, for example, with which they may have a spiritual connection could proceed in the Federal Court.I appeal to the media to get it right and to get a little bit of understanding of the basics of native title. I do not mind being accused at all—mostly they are right—but on this occasion they happen to be wrong. But I have maintained all along, since the second reading speech that I am not about diminishing the common law rights of the indigenous peoples of Australia.19:34:002217Brown, Sen BobSenator BROWNQD4TASAG00—I move:(44) Schedule 1, item 9, page 48 (line 19), omit "primary production ", substitute "pastoral activities '.(46) Schedule 1, item 9, page 49 (line 4), omit "primary production ", substitute "pastoralactivities ".(47) Schedule 1, item 9, page 49 (line 15), omit paragraph (c).(48) Schedule 1, item 9, page 49 (lines 16 to 28), omit paragraph (d) and the note, substitute:(d) the future act permits or requires the carrying on of a pastoral activity (see section 253) while the lease (including as renewed on one or more occasions) is in force.(49) Schedule 1, item 9, page 49 (line 31), omit paragraph (a).(50) Schedule 1, item 9, page 50 (lines 4 to 7), omit subsection (3), substitute:(3) However, this section does not apply to a future act permitting or requiring farmstay tourism if: (a) the act permits or requires tourism that involves observing activities or cultural works of, or observing places because of their cultural significance to, Aboriginal peoples or Torres Strait Islanders; or (b) the act permits or requires the construction of buildings or other facilities that: (i) are not additions or alterations to a homestead used for the purposes of the lease; or (ii) extend more than 200 metres from such a homestead.(51) Schedule 1, item 9, page 52 (line 6), omit "after 23 December 1996 and".(52) Schedule 1, item 9, page 52 (line 8), omit "any of the following".(53) Schedule 1, item 9, page 52 (line 9), omit "primary production activity", substitute "pastoral activity".(54) Schedule 1, item 9, page 52 (line 10), omit "or", substitute "and".(55) Schedule 1, item 9, page 52 (lines 11 to 16), omit subparagraph (ii), substitute:(ii) if the activity is or involves farmstay tourism, it takes place pursuant to a valid act (including one that is valid because of section 24GB); and(d) the carrying on of the activity would be valid if it did not affect native title rights and interests.(56) Schedule 1, item 9, page 52 (lines 27 to 32), omit subsection (3) and the note, substitute:(3) The native title holders concerned are entitled to compensation for the carrying on of the activity if no compensation is otherwise payable for it under this Act.Who pays compensation(4) The compensation is payable by: (a) if the activity is attributable to the Commonwealth—the Crown in right of the Commonwealth; or (b) if the activity is attributable to a State or Territory—the Crown in right of the State or Territory.(189) Schedule 1, page 146 (after line 3), after item 58, insert:58A Section 253Insert: pastoral activity means:(a) the pasturing of stock for sustainable commercial use of the land on which they are pastured; or(b) agricultural or other non-dominant uses of land that are essential to or inseparable from the activity specified in paragraph (a), including the production of agricultural products for use in stock feeding; or(c) farmstay tourism activities (but only so long as they are incidental to the dominant use of the land and that dominant use continues to be an activity referred to in paragraph (a)); or(d) for things done on leased land, an activity that was necessary, reasonably incidental or reasonably ancillary to the use or development of the land or waters for the purposes for which the lease was granted or, for a lease granted before 1 January 1994, the lawful purposes of the lease as at that date, even though the lease, when it was granted, did not permit, or prohibited, the doing of the activity;but does not include mining.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Murphy)—Senator Brown, I would like to ask you about your amendments 4 and 5.QD4Brown, Sen BobSenator BROWN—They relate to water rights and should more properly be considered later.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Are you seeking to defer those?QD4Brown, Sen BobSenator BROWN—I have not moved them. I will wait until the appropriate section, if I may.Amendments 45 to 58 effectively would put in place the definition of pastoral activity that appears in the Northern Territory legislation. This is to ensure that pastoralists would be able to go about their usual activities as leaseholders and also do those things that are necessary, incidental or ancillary to their primary production, without having to negotiate with the traditional owners. If you like, this is taking the Northern Territory situation and expanding the definition. It is ensuring that all things that leaseholders currently need to do, in relation to fostering their primary production, would be able to be done without the need to negotiate. It nevertheless means that all the things that are not done at the moment, that we can cite as coming down the line and can expect will come down the line in the future, particularly as leaseholdings are upgraded to freehold status, would require negotiation with the traditional owners.If you like, it is a means of covering the concerns, to some degree, that Senator Boswell had earlier and to assure current leaseholders that their leasehold activities, as laid down in their lease, and their ability to go about their cattle grazing and ancillary and necessary incidentals to that, would be free of the requirement to negotiate. On behalf of the Democrats and the Greens I put that forward to the committee as a reasoned amendment and as an alternative to the tighter definition that we put forward earlier.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Murphy)—I might just clarify something. Your amendment 45 is to oppose section 24GA, your amendment 57 is to oppose section 24GD, and your amendment 58 is to oppose section 24GE. We will probably have to move those separately.QD4Brown, Sen BobSenator BROWN—Okay, thank you. If the committee so allows, that would be sensible.Leave granted.19:39:002219Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—For the reasons we advanced last time I formally note the government's opposition to the proposals put by the Greens. What has been proposed would amount to a significant distraction of the current and existing rights of pastoral lessees all over Australia by denying them and by the act of the federal parliament taking away from them rights that they currently have without any, as I can see it, compensation or any other scheme in place. It is attempting to freeze pastoral activity as per the Northern Territory regime, but the fact is that every state does allow and provide on pastoral leases—where they properly constitutionally are able to, because they have constitutional responsibility for land management—the rights to engage in a whole range of activities on pastoral leases. We have made it quite clear that those rights which they currently have are not going to be taken away from them and should not be taken away from them.There is a future act regime in place to allow them to determine the extent to which and the manner by which they engage in other activity in the future. We have made it abundantly clear as a matter of government policy that we are not going to destroy, take away or extinguish the existing rights of pastoral lessees across Australia by using the races power in this way to cut across the legitimate constitutional prerogatives of state governments to manage their land. So these amendments are completely unacceptable.19:40:002219Bolkus, Sen NickSenator BOLKUSXE4SAALP00—Can Senator Brown tell us which of the amendments incorporate the Northern Territory definition.19:40:002219Brown, Sen BobSenator BROWNQD4TASAG00—I have moved amendments 44 to 48. I have put that for the committee to consider.XE4BOLKUSSenator Bolkus—Answer the question.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Senator Brown, Senator Bolkus is seeking a response to the question he posed to you.QD4Brown, Sen BobSenator BROWN—And amendment 189. That incorporates that definition.19:41:002219Bolkus, Sen NickSenator BOLKUSXE4SAALP00—As Senator Brown has moved 189 as well, the amendments are consistent with the amendments moved by the Labor Party in the previous deliberations, and we support them.19:41:002219Brown, Sen BobSenator BROWNQD4TASAG00—If I may, I want to respond to Senator Minchin in his capacity as minister for the government. He said that they are not going to support a move that would take away, destroy or extinguish the rights of leaseholders. What a way to describe giving indigenous people the right to negotiate. What we are saying here is that the pastoral activity means, as in the Northern Territory legislation, amongst other things: `the pasturing of stock for sustainable commercial use of the land on which they are pastured; or agricultural or other non-dominant uses of the land that are essential to or inseparable from the activity of pasturing such stock . . . including the production of agricultural products for use in stock feeding; farmstay tourism activities . . . things done on leased land, an activity that was necessary, reasonably incidental or reasonably ancillary to the use or development of the lands or waters for the purposes for which the lease was granted . . . ' But it does not include mining.What these amendments are doing is saying that those activities, which are the activities granted through leases to date, are to be pursued without the indigenous people having a right to negotiate. We are moving a lot of ground here. But we are saying that all of the other things that the government wants—upgraded leases, lessees or third parties to be able to engage in in the future—would be subject to the right to negotiate.What the government says is there is no right to negotiate for indigenous people on anything except mining. Nothing at all. We have been through that earlier this afternoon. The minister has no answer to that because he knows it is a perfectly correct description of what the government is doing: wholesale divestment of the indigenous people's rights to negotiate on a whole range of development activities—dams, fisheries, woodchipping, cotton growing; we have been through the list before—in the future. There will be enormous frustration and, as I said, a reticence turning to anger that you can pick up in the indigenous communities around this country in the future.We are putting forward here a means of saying, `Let us ensure that the pastoralists go about their activities with a very expanded definition of those activities to include all manner of things that are incidental to their pasturing of stock while giving indigenous people the right to negotiate if other purposes that are not foreseen are visited upon their lands in the future', and the government is saying no.19:44:002220Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I underline that the whole issue of the Northern Territory Pastoral Land Act definition is contained, as I understand it, in Democrat-Greens (WA) amendments 189 and 48. I do have a question for the minister because he concerned me when he spoke about the fact that our amendments would somehow or other take away a whole lot of rights of pastoralists. I understood, particularly from listening to the Prime Minister, that in fact that is not so and that his 10-point plan widens them very widely indeed, way beyond any fair understanding of pastoral activity. I draw his attention to a pres conference on 28 April last year when the Prime Minister said:. . . primary production . . . is a very wide definition indeed . . . and goes far beyond pastoral activities that are currently sanctioned under pastoral leases and those activities will be able to be carried on without any let or hindrance from either native title claimants or indeed any other section of the Australian community. If that is what the Prime Minister said the 10-point plan does and your amendment does under this particular section, then that seems to fly in the face of what you are saying, Minister.19:46:002220Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—Can I say, firstly, that I am terrified to say anything at all in this debate which might provoke Senator Brown into a 15-minute harangue, but I do have to remind Senator Brown that the current Native Title Act, which created the right to negotiate, provided that the right to negotiate applies in respect of proposed mining or compulsory acquisitions for third parties. In only those two circumstances is the right to negotiate triggered: for mining, which includes any mining activity, or compulsory acquisitions for third parties. Those are the two activities to which the right to negotiate applies in the current act. That is the current law and that was what was agreed. It is important to keep remembering this.As to what Senator Woodley said, it is important to understand that the government's starting point was to say that what pastoral lessees are currently allowed to do should be preserved in the application or in the incorporation of the Wik decision into the land law of Australia and, most particularly, into the Native Title Act. Can I tell you what the situation is in every state?Every state and territory already has procedures in place for approving the conduct of quite wide new pastoral or agricultural activities on pastoral leases. South Australia has no specific restrictions on the type of activities that can be approved—you have the right to seek approval and have that right granted. A Queensland pastoral lease must be used for agricultural or grazing purposes, or both. Section 153 of the Land Act 1994 says that, including horticulture and cropping, approval for new activities may be given by the minister. In New South Wales, the minister can approve a change of lease purpose to allow for cultivation or use of the lease for any other purpose, and so on.Even in the Northern Territory, a pastoral lease may only be used for pastoral purposes but, in addition to the pasturing of stock, these may include pastoral based tourist activities, conducting a trucking business or running a store or roadhouse and the pastoral board may approve a non-pastoral use, for example, horticultural activities. So even in the Northern Territory, people who have bought leases in good faith, worked their leases, complied with the law and done everything expected of them, have legal rights which these provisions would take away from them. That is the point I made and that remains the fact.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—The question is that sections 24GA, 24GD and 24GE stand as printed.19:48:002221Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Briefly, I want to put on the record that those rights have not been taken away. Negotiating with traditional owners does not mean that people do not have the ability to continue with those acts and I have not heard of anybody who wants to stop those kinds of acts taking place. Question put: That Schedule 1, item 9, sections 24GA, 24GD, and 24GE, as amended, be agreed to.19:52:00The committee divided. (The Chairman—Senator S. M. West)33Abetz, E. Alston, R. K. R.Boswell, R. L. D. Brownhill, D. G. C.Calvert, P. H. Chapman, H. G. P.Colston, M. A. Coonan, H.Crane, W. Eggleston, A.Ellison, C. Ferguson, A. B.Ferris, J. Gibson, B. F.Harradine, B. Heffernan, W.*Herron, J. Hill, R. M.Kemp, R. Lightfoot, P. R.Macdonald, I. Macdonald, S.MacGibbon, D. J. Minchin, N. H.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.31Allison, L. Bartlett, A. J. J.Bishop, M. Bolkus, N.Bourne, V. Brown, B.Campbell, G. Carr, K.Collins, J. M. A. Conroy, S.Cook, P. F. S. Crowley, R. A.Denman, K. J.* Evans, C. V.Hogg, J. Lees, M. H.Lundy, K. Mackay, S.Margetts, D. Murphy, S. M.Murray, A. Neal, B. J.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.Campbell, I. G. Gibbs, B.McGauran, J. J. J. Cooney, B.Newman, J. M. McKiernan, J. P.O'Chee, W. G. Forshaw, M. G.Watson, J. O. W. Faulkner, J. P.* denotes teller(Senator Knowles did not vote, to compensate for the vacancy caused by the resignation of Senator Bob Collins.)Question so resolved in the affirmative.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Murphy)—The question is that amendments 45, 189 and 44 to 58, with the exception of those that we have just dealt with, be agreed to.Amendments not agreed to.19:58:002221Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I move:(N1) Schedule 1, item 9, page 49 (line 26), at the end of subsection (1), add:; and (e) the future act could lawfully have been done in relation to the lease prior to 23 December 1996 if any native title in relation to the land and waters covered by the lease had not then existed.(N2) Schedule 1, item 9, page 52 (line 16), at the end of subsection (1), add: ; and (d) prior to 23 December 1996, the activity could have been carried out in the area covered by the lease because: (i) the terms of the lease or the legislation governing the lease permitted or required the activity; or (ii) if an act (such as a permit, licence or authority) was required, that act could lawfully have been done in relation to that activity prior to 23 December 1996.These were amendments that were adopted by the Senate on the last occasion. The first amendment deals with diversification. Section 24GB is on page 49 under the heading `Acts permitting primary production on non-exclusive agricultural and pastoral leases'. The clause nominates a number of criteria relating to a future act. I am adding (e) to the bottom of that particular clause which says that the future act could lawfully have been performed with or without authorisation on the lease prior to 23 December 1996.The gist of this is that I am saying that the pastoralists should have the right to undertake activities which were permissible on the lease prior to the Wik decision. The converse is that they should not have the right, subject to provisions that are in the legislation, to conduct activities which were not permissible prior to the Wik decision of 23 December 1996. Also, they should not be able to do so contrary to the terms of their lease.Honourable senators in the committee will say, `Well, that is the common law anyhow.' As I see it, it is the common law anyhow. As I have said from the beginning time and time again in this particular debate, I am not in the business of diminishing the common law rights of the indigenous people of Australia. For that matter, I am not in the business of diminishing the common law rights of pastoralists or anybody else through this particular discussion on this debate. That is the amendment on farm diversification.In the second amendment—amendment No. N2—I am proposing an amendment to schedule 1, item 9, at page 52 by adding a new (d). That section deals with primary production activities on non-exclusive agriculture pastoral leases. This section says that it applies to any activity if (a) to (c) apply. I am adding a (d). It says:prior to 23 December 1996, the activity could have been carried out in the area covered by the lease because: (i) the terms of the lease or the legislation governing the lease permitted or required the activity; or (ii) if an act (such as a permit, licence or authority) was required, that act could lawfully have been done in relation to that activity prior to 23 December 1996.I will leave it there because this measure was adopted on the last occasion.20:03:002222Bolkus, Sen NickSenator BOLKUSXE4SAALP00—The opposition supports Senator Harradine's amendments. In fact, we have moved amendments Nos 17 and 18 in identical terms. We will not be pursuing those now that Senator Harradine is moving these amendments. We support the amendments for the reasons put up by Senator Harradine. It is important that we protect, as far as we are able, common law rights in this debate. This particular set of amendments does so in respect of what activity is allowable after the date of 23 December 1996.20:04:002222Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—Again, for the reasons extolled when we debated this last time, the government cannot accept this amendment. I put on the record the fact—as I think it is known to most senators—that this purports to and would have the effect of grossly discriminating against Western Australian pastoral lessees and no others, and therefore it is completely unacceptable.20:04:002222Brown, Sen BobSenator BROWNQD4TASAG00—I seek some interpretation from the movers of these amendments in the reverse direction: what will the impact of the amendments that are being put forward be on the rights of indigenous people?20:05:002222Bolkus, Sen NickSenator BOLKUSXE4SAALP00—Senator Harradine might want to give an answer. The long answer can be found in previous debates on this issue in the last session, and that is that we are concerned to ensure and protect against encroachment. That is why the benchmark of what was permissible under lease legislation before 23 December 1996 is being moved here, otherwise it could very well be that there could be further diversification which this provision would not otherwise allow. That diversification would potentially have an impact on native title claims. 20:05:002223Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I will just make a brief comment. The Western Australians have got a heap of things already out of this particular legislation. I would have thought they would be gracious enough to agree that this provision will hardly affect the situation in Western Australia at all. I have a feeling that if mature consideration were given to the situation by the Western Australians—as I am sure it will—they would see that what I have said is correct.Amendments agreed to.20:06:002223Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I move:(R9) Schedule 1, item 9, page 53 (line 31), at the end of subsection (1), add: ; and (f) the future act takes place on land which has not been the subject of an approved determination of native title in respect of which the native title rights and interests include a right to exclusive possession of the land.This amendment is directed at amending section 24GD, which deals with acts permitting off-farm activities that are directly connected to primary production activities. Let me, first of all, describe what this amendment attempts to do. The section applies to a future act that:. . . takes place on land which has not been the subject of anapproved determination of native title in respect of which the native titlerights and interests include a right to exclusive possession of the land.The government has indicated that, in amending section 24GD to limit off-farm activities to grazing and access to, and taking of, water, if a pastoralist wishes to undertake those activities on freehold land, the pastoralist would need the consent of the landowner. The section, as currently worded, is discriminatory in that some pastoralists would not have to obtain the consent of native title holders.Native title may encompass a broad range of rights from rights to access through to rights of exclusive possession, as was found to be the case in Mabo and, in fact, in Crescent Head. Where a native title is the latter kind—that is, the exclusive possession kind— it would be particularly discriminatory if pastoralists on adjacent or nearby properties could agist their cattle or sheep without the consent of native title holders.This amendment is designed to ensure that native title holders whose native title rights are determined to include a right of exclusive possession are not subject to section 24GD. I am sure that eventually the government will understand the purpose of this particular amendment. It is carefully worded to apply only to those native title holders who are not claimants for exclusive possession but are determined to have a right of exclusive possession. In those circumstances, I think all honourable senators would have reason to expect that the holders of that sort of title would be given the same sorts of courtesies as freehold land holders.20:09:002223Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I place on record the government's opposition to this amendment. We do think it is important to support the regime which we proposed for limited off-farm activities to be allowed, particularly with respect to water. It is often the case that governments have preserved land next to water sources as vacant Crown land specifically to ensure that farmers and others can access the water. If, by dint of having done so, it means that the land can then be claimed and perhaps exclusive possession put over it, the native title holders then have a veto over the farmer who has previously had access to the water that could be put in place. That would be completely unacceptable to Australia's farmers and unacceptable to the government.Amendment agreed to.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Murphy)—Senator Brown, do you wish to move any of your amendments? There are quite a number of amendments that you have yet to move. You may seek leave to move them all together, with the exception of the two that are to oppose items 53 and 55, and bearing in mind that we have dealt with Nos 44 to 58.20:12:002223Bolkus, Sen NickSenator BOLKUSXE4SAALP00—It may very well be that these are consequential to the debates that we have had so far. I think we have had the main debates under this category, and it may very well be that we are talking about amendments that flow on from those two votes that were recently lost. But Senator Brown can make that assessment.20:12:002224Brown, Sen BobSenator BROWNQD4TASAG00—That is so. They fall into the same category, so I will not move them.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—There being no further amendments to primary production, we will move to water and airspace.20:15:002224Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—The Greens (WA) oppose subdivision H. We have put this up-front because the management of water and airspace is extremely important. We would be asking for that subdivision to be removed. We might move some amendments if we are not successful in opposing this subdivision; however, it is important to explain the reason why we oppose it. Subdivision H validates state and territory actions regarding land or resource use based on the nature of the land tenure or of the resource. Subdivision G relating to the diversification of pastoral leases, subdivision J relating to reserves and subdivision N relating to offshore places are to a similar effect.Effectively, the government is enabled to act without regard to native title rights and an interest in the resource or to the effect of the act on those rights and interests. This means a group of property right holders will be liable to having their property rights overridden in favour of pastoral diversification, regulation and management of water and airspace acts done pursuant to a reservation or any act done offshore. Subdivision H divides regulation of water and airspace into two categories: legislation in relation to management or regulation, and grants of leases, licences, permits or authorities under valid legislation that relates to management or regulation.In respect of water and airspace, the Senate passed an amendment requiring the person granting the interest to notify native title parties, including the representative body, and give them an opportunity to comment—that was government amendment No. 25. The ALP proposed removing the subdivision altogether—that was opposition amendment No. 70. The Greens and Democrats treated the two classes differently. Native title parties were to be notified of proposed legislation. The state or territory had to consult in good faith about changes to protect native title and to relax any prohibitions in favour of native title holders. The right to negotiate would have applied to grants of interests. The latter proposal provides some protection for native title rights and interests while ensuring that the government is able ultimately to legislate, regulate and manage the resource. This is important for native title holders, particularly in the Murray-Darling Basin where the states are proposing transferable property rights for water.Almost any indigenous Australian you speak to would tell you why this issue is so very important culturally, socially and spiritually. I cannot think of any other issue on which people were so plaintive to me when we were debating this in 1997. Anywhere in Australia where native title exists there are special places for ceremonies, sacred sites, in relation to places of water. They could be creeks, waterholes, rivers, seasonal rivers and so on. They are meeting places. They are special. They are an absolutely important part of the story-lines of indigenous Australians. If you wipe out of contention the possibility for indigenous Australians to have part in their management, you are basically wiping out a large part of their cultural life and identity.Some of the areas that might be considered to be of spiritual significance and that might end up being taken out of the realm of consultation as a result of this action could include: Todd River; Boobara Lagoon; Lake Victoria; Lake Mungo; Crocodile Dreaming in Broome; inland fishing environments such as the Cooper Basin; Murray-Darling Basin; Snowy River; Macquarie Marshes; socially significant areas of customary obligation; gathering and meeting places; trading places; areas of access to cultural activities; stock routes and reserves; access areas for cere monial materials such as ochre; burial sites and sandy banks; recreational and leisure activities, especially those for children; education and camping sites; and economically significant areas for reeds, shells and stones, examples of which include the Mitchell River system, Cooper Creek, the Lake Eyre Basin and Dalhousie Springs.Water rights are fundamental to the traditional economies of all coastal indigenous people in Australia. Their right to preserve their access to the sea and to protect traditional fishing grounds is even more important following the dispossession of much of their land. We will deal with that when we deal with offshore areas. Inland rivers and waterholes are very often the location of the most spiritually significant places for Aboriginal people. The right to preserve access to the sea and to protect traditional fishing grounds is even more important because of the level of dispossession of so much of their land. For many generations, governments encouraged sole dependence on the sea as a means of facilitating that dispossession. The same situation applies along inland rivers.The special importance of the sea to indigenous people has been acknowledged by the Resource Assessment Commission in its 1993 report on the costal zone. The threats include not only fishing but also oil and mineral activities. So we are talking about the impact of other activities on those rights. The seas, inland rivers and the waterholes are, as I have mentioned, very often the location of the most spiritually significant places to Aboriginal people. We see that overuse by other interests may cause environmental disasters and destroy sacred places—that can be sea as well as inland river overuse. The development that goes with that kind of activity can also restrict access to important areas.The right to negotiate is the minimum protection which can be afforded to indigenous people giving them some say in how future proposals affect the traditional sea and river country. Canada, New Zealand and the United States have each afforded their indigenous people a level of protection for their marine estates which goes well beyond that currently existing in Australia. The current act does not deal adequately with native title over places beyond the limits of a state or territory—that is, areas not covered as onshore places. The only relevant provisions are those which allow a government to confirm its ownership of natural resources and to confirm public access to coastal water—that is, sections 212(1)(a) and 212(2)(c). Native title fishing and hunting rights are preserved in section 211.What the government is proposing here is a total overreach in that it allows almost any action over any water to constitute a permissible future act. It does what I have not heard of native title doing in any other part of the world—that is, restrict the right of native title claimants to claim native title and to have access to fishing. It is just almost unbelievable.Proposed sections 24HA(1)(b) and 2B(ii) both say, `Living aquatic resources'. It would be very interesting to see if what the government is suggesting is that at some stage they can envisage—and perhaps the minister can advise me that this is not the case—traditional owners being in breach of some law, arrested or put in prison for accessing traditional fishing rights. If they do not have access to native title over fishing areas, it is going to be difficult for them to fish and hunt, especially fish. If they do not have access to native title, how can they be guaranteed access to those traditional methods of existence? It seemed to me to be a ludicrous juxtaposition in the bill as we dealt with it last time.The proposed government amendments will deny native title holders the right to negotiate. Senator Boswell, it is not the right to veto; it is the right to negotiate. The right to negotiate is not the same as the right of veto. The amendments will provide only the most minimal procedural requirements available to them before the government takes action which may permanently deprive indigenous land-holders of their rights to fish, use waters or prevent desecration of sacred sites in, for example, wetlands, waterholes or rivers. This is most significant to many native title holders. On the one hand there are many locations across Australia where the only likely remain ing native title rights reside in waters because the greater area has had native title extinguished by the grant of exclusive possession. Therefore, the proposed amendments will effectively provide the final act of dispossession of those people.How can we find anything in this act which distinguishes the Australia of today from our colonial past? Where is the fair and just outcome for these people in this bill? Where can it be seen that their remnant rights are respected? Under traditional law and custom there is no differentiation between rights in land and rights in waters. There is no doubt about that, and I would like to quote Senator Harradine who in 1997 stated:If a right to negotiate . . . is to be enjoyed by native title holders whose country is vacant crown land, that right should not be taken away from native title holders who suffer the added disadvantage of having their land subject to a pastoral lease without their consent.I would like to thank Senator Harradine for those words. Under the same principle, this place must ask the question: if a right to negotiate is to be enjoyed by native title holders whose country is vacant Crown land, why should that right be taken away from native title holders who suffer the disadvantage of having their only remaining native title rights removed or affected without their consent simply because these rights reside in waters?Australia is in the main a dry continent and, as such, waters are of essential significance to native title holders. Many people traversed the country from waterhole to waterhole or up and down watercourses and rivers. Water was not only essential for survival; it also provided important places for meetings, ceremonies and trading between different groups. Such waters provide a very important social role for people that is integrally linked to traditional relationships, laws and customs. Waters have been traditionally used for a wide range of activities from recreation and the harvesting of plants to traditional medicines, burial places and so on. Under the current act, any grant of new rights is subject to the future act regime by which native title holders must be accorded the same procedural rights as they would be if they possessed freehold title.The proposed amendments are a significant impairment to existing rights and are likely to be in breach of the Racial Discrimination Act. There can be no question that water and the places around water have traditionally and customarily been of economic, social, recreational, educational, ceremonial and spiritual importance. People are also traditionally responsible for caring for waters and the land around them. Waters and land are integrally related in a traditional way. Remember, the land belongs to the people and the people belong to the land. It is a two-way process. Any attempt to preclude claimants from carrying out their responsibility in caring for waters is unjustifiable and shows a complete lack of understanding of native title itself.I am aware of the fact that the last time we dealt with this in 1997 there were no amendments accepted by the Senate. I am also aware of the fact that between 1997 and April 1998 a lot of people will have spoken to the various groups involved in making decisions to express the importance of the ability to negotiate over water and airspace. I hope some of those pleas have reached the hearts of the senators whose role it is to make decisions in this place. I commend the amendments to the Senate. And first, of course, is the need to remove the iniquitous subdivision H.20:28:002226Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—This section that we are dealing with is point 8 of the Prime Minister's Wik 10-point plan. From the beginning, the Australian Democrats believed this to be a flawed position and one which, in a wholesale way, attempts to extinguish at worst, and pre-empt at best, the common lawI have to ask Senator Minchin: what is wrong with the common law development in this country that it requires the might and power of the federal government to be visited upon the traditional owners of this land in respect of this section of the bill? If we are to take a rational approach to these matters and look at them in context, we will see that the common law has developed in a wholesome, and sometimes unwholesome, way for generations. Take, for instance, the law of negligence. Anyone who has studied the law of torts will readily tell you that nearly the whole system of public responsibility and, indeed, the insurance industry, developed out of a case where someone, unfortunately, consumed a decomposed snail in a bottle of ginger beer. That now famous case of Donohue v. Stephenson—and I certainly have to take the word of the person who wrote this speech for that—gave birth to the legal doctrine of duty of care and all the composite derivatives of actions of negligence that exist and continue to develop today.The point I am making is that the common law is not an unruly, uncertain or necessarily unreliable element of our legal system. It is the appropriate and rich other half of our legal system. I certainly know that. From my perspective, while acknowledging the limitations of the common law, I still must say that I am a supporter of its operation. Does anyone here tonight have any doubt in their minds about the status of Aboriginal and Torres Strait Islander land rights if Mabo had not happened?We need little reminder of the unfulfilled promise of the Hawke Labor government to institute wholesale land rights legislation despite a clear mandate in 1983. We are still to see any serious attempt in this country to move towards a treaty with the original owners of this land. To that end the Australian Democrats support the Australian Greens in our amendment for we want to ensure consultation with native title holders prior to states and territories enacting legislation for the management of water and airspace and to extend the right to negotiate to apply to grants of interests in water. I will not hold up the chamber any further, but the principle I have enunciated is important to have on the record.20:31:002227Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Senator Woodley is quite right: the Yorta Yorta case, on which we are still awaiting an outcome, is one of those cases where we might, by legislation, be jumping the gun and I do not think that is the correct thing to do in this case.20:32:002227Bolkus, Sen NickSenator BOLKUSXE4SAALP00—The opposition supports 58A but we do not support the other Greens (WA)-Democrat amendments. Our position was, in a sense, reflected by Senator Woodley in his speech. Our position is that there is an evolving common law and it should be allowed to evolve. As a consequence, 58A would pre-empt it. In one direction it would close it off. The other amendments of the Democrat-Greens would close it off by being more beneficial, I suppose, than what is in the common law at the moment.The position we took last time was that we want the common law to develop. It has developed over recent years. The Mabo decision gave rise to the potential for recognition of native title rights and interests in airspace and waters, including offshore, onshore and subterranean waters with the resources in them. Such recognition, according to the common law, could give native title holders authority to deal with these elements of the environment as owners and rights to access and use them as resources.Mabo was a new element in the development of the Australian common and statutory law in respect of the management, conservation and distribution of water. It was a recent development and one that impacted on the existing law. At the same time as it impacted on the existing law, it also respected the fact that there were objectives in the existing law to achieve regulatory and management control in most states. Therefore, we have a system of state law. We also have native title. How native title and the common law develop is something which to date has been allowed, by statutory law, to find its own course. We believe it is important to allow that to happen. The government goes too far. The government cuts off potential development of common law and for that we do not support the government's proposals.It is important to place on record a potential direct and long-term injustice. The Yorta Yorta case has been mentioned. That is a case which has been proceeding for quite some time. It has been extensive in its deliberations on the system and it is one where many people have pursued their interests under the common law and the processes available to them. What we may be doing here, if we do not support 58A, is cutting off those people, with their interests and their claims, at the knees. If we are concerned about protecting the common law, we should allow it to develop, particularly in respect of those cases which are already on foot.To not do so would be an injustice to the Yorta Yorta people. It would also be an injustice to the people pursuing the Croker Island case. Once again, cases have been instituted there. The impact of this legislation will be to cut off whatever rights those people will be able to achieve in those cases. Not only should we keep our eye on the development of the common law but also we should keep an eye on the fact that, by adopting the government's position here, by not allowing the common law to find its way, as 58A would allow, there would be a direct injustice on the people involved in those cases.Both cases have involved much expense, many resources and many people. In a sense, they are cases at the cutting edge of the development of the common law. I would hate to be in a position where this chamber and this parliament denied these people the capacity to pursue their rights to the full extent of the common law. It is a bit like passing retrospective legislation—not technically but, in essence, what we are talking about here is removing the rights of people who have instituted proceedings. I also find that unacceptable in these circumstances.20:36:002228Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—Regrettably, we are seeing another example of the ALP saying one thing and doing another. It says it is committed to the government's objective of introducing some certainty into Australia's land management system but, when it comes to the crunch, it proposes amendments which relegate us to considerable uncertainty. The proposition is also put that somehow we are cutting across the common law, negating the development of the common law, et cetera. Again, this does not measure with the facts of the bill.The bill does not in any way inhibit the opportunity for Aboriginal Australians to make claims for native title on water and airspace. It allows the courts entirely the prerogative to make determinations as to what, if any, native title rights exist and where and how they are to be exercised, et cetera. What this bill is about is simply ensuring that democratically elected governments, on behalf of all of us, through powers granted to them by the parliaments of the country, have the proper prerogative of being able to regulate water and airspace on our behalf and to issue to the millions of Australians concerned the appropriate statutory rights—including, obviously, to Aboriginal Australians who seek those rights—and the circumstances under which they shall be issued.In effect, it is to put into place a coexistence regime for common law native title in respect of water and airspace, and the statutory rights granted by democratically elected governments. We are dealing here with thousands and thousands of individual permits, licences and leases in respect of water all over Australia. As I say, often it could well involve Aboriginal Australians who want statutory rights.What we are putting in place is a mechanism by which governments can issue those rights. It is based on the non-extinguishment principle—as I say, the common law can develop, that the native title cannot be extinguished. It follows the Wik principle exactly. This is not a race issue; this is about the law itself, when you talk about the common law. The fact of our legal system is that statutory rights do prevail over common law rights and the common law is constantly being moulded, prodded and, in many cases, extinguished or overridden by statutory law, because that is what democracy is about. Laws passed by democratically elected parliaments obviously must and should override inconsistent common law, otherwise we would have an autocracy of judges.We have put in place compensation; where there is any impact on the native title there is compensation. We have put in a full notification regime for native title holders and the opportunity to comment, et cetera. This is not about extinguishment; this is not about cutting across the common law; this is about how we put in place a sensible co-existence regime, given that we now have native title, which we did not have before, given that for 200 years governments have been regulating, and seeking to regulate, on behalf of all of us, water and airspace. How do we do that, taking account of the fact that native title may be determined as being held in respect of water and airspace? You must have a regime to deal with that; this is that regime.20:39:002229Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—The minister got a little bit over-enthusiastic there. We have had native title for thousands and thousands of years; it has been belatedly recognised. It has been there for a long, long time.20:39:002229Brown, Sen BobSenator BROWNQD4TASAG00—I ask the minister about the rights of the Mornington Island people to fish in their traditional fishing areas. If the Queensland government gives a specific permit for a big deep sea fisheries operation to move in and to establish processing works and so on, what are the rights of the island people who have those traditional grounds to negotiate in that process under your law?20:40:002229Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I am not quite sure where the question is heading. Of course, there is nothing in this bill that in any way prevents anyone who believes they have a native title claim over those waters from making their claim, to seek to have the Federal Court determine that claim and grant them native title rights. The court will determine if they have native title and, if so, what it consists of, who holds it and how it relates to statutory rights that may exist in those waters as well.This is about the essential requirement that democratically elected governments must be able to continue to regulate, on behalf of all of us, in a statutory sense, water and airspace. I go back to what I was saying before in terms of your specific example: nothing in this prevents anyone who believes they have native title in the area you are speaking of from seeking a determination to that effect and exercising their native title rights, but obviously, like everybody else who has any common law rights, subject to statutory rights and, entirely consistent with Wik, where there is any conflict between the statutory rights and the common law rights, as the High Court has said, the statutory rights prevail.20:41:002229Brown, Sen BobSenator BROWNQD4TASAG00—What I asked, Minister, was: what were the rights to negotiate of the traditional owners, the traditional fishers in the gulf? If the Queensland government issues a licence to a deep sea fisheries operation with processing works, what rights under your legislation do those traditional fishers have to negotiate in that situation?20:42:002229Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—At common law they have no rights whatsoever. Under the Native Title Act the right to negotiate applies only in respect of mining or compulsory acquisitions. If anyone proposed a mine or a compulsory acquisition over water, a right to negotiate would apply. That is the situation under the current act and it would be the situation under our act. It has never been contemplated by anybody—apart from you, I understand—that the right to negotiate process could apply to every single fishing permit, water permit or whatever. I guess that is what you are proposing but that is not in the current act; it is not being proposed, I do not think, by the Labor Party, and certainly not by us.As to the procedural rights which we are putting in place in a statutory sense, they are set out in 24HA(7), in terms of notification and opportunity to comment. Obviously, you would want a lot more. All I can say is that, coming from a base where, as a matter of common law, there are not any procedural rights attaching, the procedural rights provided for in the current Native Title Act in terms of the right to negotiate relate only to mining and compulsory acquisition. In terms of our regime you have non-extinguishment, compensation and a notification and opportunity to comment regime set out in the bill.20:43:002229Brown, Sen BobSenator BROWNQD4TASAG00—I will translate that for the committee. It says that this legislation leaves no rights for the indigenous people to negotiate. Senator Minchin says that common law gives them no rights. That has not been tested. Where does he get that from? That is a totally fatuous assumption. Logic would have it that of course the indigenous people have a right to their fisheries. What Senator Minchin and the government are doing in this section is stealing that right away. That is legalised theft that is occurring here. Senator Minchin sits there and says, `There is no extinguishment here', as if when you put somebody in gaol and remove all their rights, there is no extinguishment of life as far as they are concerned.Let me tell the government that there is enormous extinguishment here. This legislation says that any state government that comes along and authorises, permits, licences, leases an operation that is going to rob the indigenous people of their access rights, their resource base and their cultural relationship, as Senator Margetts puts it, with the waterways or the seas, gets cut out. This is bald-face extinguishment in this case. Not only is this incidental to the government's legislation, but it is what this legislation is about. They are thieving from the indigenous people their rights. Let us call a spade a spade. That is what is happening here.It could all float through but, Senator Minchin is right, that some people in this corner, and to some degree the Labor Party on this occasion—and we have not heard from Senator Harradine—are saying, `We might not have the numbers, but we are not going to agree to that.' We will have the numbers if Senator Harradine votes with us. Here is a big test. Just across the way from the Wik people are the Mornington Island people whose rights are about to be taken away from them if this amendment moved by the Democrats and Greens is not supported. I appeal through you, Mr Temporary Chairman, to Senator Harradine to stand by the people of the gulf country when it comes to their access and their resource base.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Ferguson)—Order! Senator Brown, I suggest you address your remarks to the Chair not through the Chair. You do not speak directly to Senator Harradine.QD4Brown, Sen BobSenator BROWN—Thank you, Chair, I will remember that and I will watch carefully to see that nobody else infringes that ruling.6H4HARRADINESenator Harradine—It does not matter. He is just talking nonsense. He just doesn't know anything about native title.QD4Brown, Sen BobSenator BROWN—There you go. Good Senator Harradine says that it is nonsense that he is about to support the theft of indigenous people's rights when it comes to the waters, the rivers, the lakes and the seas of this country. He can live with that if he wants to.XE4BOLKUSSenator Bolkus—As long as he doesn't have to live with you.QD4Brown, Sen BobSenator BROWN—You might make a comment like that and then turn your back, Senator Bolkus.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Order! Senator Brown, you do not address your remarks directly to the senator you address them to the chair.QD4Brown, Sen BobSenator BROWN—You might pick up on the fact that interjections are disorderly and levy a fair hand in this matter in future and then I will look to it.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—I promise you I will.QD4Brown, Sen BobSenator BROWN—This is a serious matter. It is not good enough for Senator Harradine to dismiss it as nonsense. He knows too that interjections are disorderly. He will get his opportunity in a moment to explain, if he is not going to support this amendment, why he is not going to. And if he disagrees that this provision in the 10-point plan—what number was it, Senator Woodley—through you, Chair.HX5WOODLEYSenator Woodley—Eight.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Not through me, Senator Brown, you address me.QD4Brown, Sen BobSenator BROWN—I went through you to him on that occasion, Chair.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Well don't.QD4Brown, Sen BobSenator BROWN—I got the answer I wanted, what is more. It was No. 8 of the 10-point plan. Is Senator Harradine going to give that the stamp of approval too? If he is, then he and the Greens think differently on this matter. As Senator Margetts so eloquently described it, this has an enormous impact on the indigenous people of this country. It is intended to do that forever more. It allows state governments for one to move in at the behest of developers for a whole range of things, not just deep sea fisheries.What about fish farms? Is Senator Minchin or Senator Harradine going to get up and say, `This will ensure the rights of indigenous people to have a say when those operating fish farms move in on their territory'? They cannot because it will not. It is taking away the right. It is rotten that it is doing that. I cannot understand how anybody could say that they stand for indigenous rights, they dance for indigenous rights when, on the test on this occasion, they sell out on indigenous rights. It is not nonsense. It is a serious matter. It is going to affect a lot of people for a long time to come, as Senator Margetts said. I hope all members of the committee think very carefully when they vote on this amendment.20:51:002231Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I sympathise with Senator Bolkus and his feelings when he took Senator Brown to task before dinner tonight for coming in here and grandstanding and going out again. I feel that it is not doing Senator Brown any good if he continues in this vein. If he continues to try to browbeat members of the committee, if he continues to grandstand because it happens to be broadcast day, I think he should realise that he is not doing any good. Somebody is going to analyse his speeches on the Native Title Amendment Bill 1997 [No. 2] . The result of that examination will be that Senator Brown knows very little about even the fundamentals of native title.20:52:002231Brown, Sen BobSenator BROWNQD4TASAG00—What a response, Sir. No material at all. No substance.6H4HARRADINESenator Harradine—You'll get it.QD4Brown, Sen BobSenator BROWN—I'll get it, he says, but he cannot provide it. What a vacuous response, Sir. Senator Harradine talks about me grandstanding on this matter! Look back through the papers in the last week and see who is grandstanding and who has stayed true to their word. I said earlier, and I repeat, that the test here is the vote. If the amendment does not stand, if the government prevails, if No. 8 of the 10-point plan prevails, it is more buckets full of extinguishment, extinguishment of rights of indigenous people in this country. Let everybody in this place know that before they vote.10000CHAIRMANThe CHAIRMAN—The question is that schedule 1, item 9, subdivision H stand as printed. Question put:20:57:00The committee divided. (The Chairman—Senator S. M. West)30Abetz, E. Boswell, R. L. D.Brownhill, D. G. C. Calvert, P. H.*Chapman, H. G. P. Coonan, H.Crane, W. Eggleston, A.Ellison, C. Ferguson, A. B.Ferris, J. Gibson, B. F.Harradine, B. Heffernan, W.Herron, J. Hill, R. M.Kemp, R. Macdonald, I.Macdonald, S. MacGibbon, D. J.Minchin, N. H. 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.29Allison, L. Bartlett, A. J. J.Bishop, M. Bolkus, N.Bourne, V. Brown, B.Campbell, G. Carr, K.Conroy, S.* Cook, P. F. S.Crowley, R. A. Denman, K. J.Evans, C. V. Hogg, J.Lees, M. H. Lundy, K.Mackay, S. Margetts, D.Murphy, S. M. Murray, A.Neal, B. J. O'Brien, K. W. K.Ray, R. F. Reynolds, M.Schacht, C. C. Sherry, N.Stott Despoja, N. West, S. M.Woodley, J.Alston, R. K. R. Faulkner, J. P.Campbell, I. G. Gibbs, B.Lightfoot, P. R. Quirke, J. A.McGauran, J. J. J. Cooney, B.Newman, J. M. Collins, J. M. A.O'Chee, W. G. McKiernan, J. P.Watson, J. O. W. Forshaw, M. G.* denotes teller(Senator Knowles did not vote, to compensate for the vacancy caused by the resignation of Senator Bob Collins.)Question so resolved in the affirmative.21:01:002232Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I propose to move the rest of my amendments together for the sake of reducing the Senate's time. I move:Schedule 1, item 9, page 20 (line 22), omit "section 24HA", substitute "sections 24HA and 24HB".Schedule 1, item 9, page 21 (line 3), after "test)", insert "and section 24HB (leases, licences, etc. relating to water and airspace)".(59) Schedule 1, item 9, page 56 (line 19), omit "section", substitute "Subdivision".(60) Schedule 1, item 9, page 56 (after line 25), after subsection (1), insert:(1A) If the legislation contains a provision that is wholly or partially inconsistent with the continued existence, enjoyment or exercise of native title rights and interests in relation to the water or airspace, the act is valid if: (a) the provision extends equally to the doing of any act in relation to the water or airspace by native title holders and any other person; and (b) there are circumstances in which any prohibition contained in the provision can be relaxed, and the circumstances include the grant of permission to native title holders to exercise native title rights or interests which would otherwise be subject to the prohibition; and (c) before the act commences, the relevant Minister has notified any representative body, registered native title bodies corporate and registered native title claimants in relation to land or water which may be affected by the act and has consulted with them in good faith as to the purposes and effect of the act, including any as to amendments which may protect native title rights and interests or provide for a relaxation of the prohibition in favour of native title rights and interests.Non-extinguishment principle(1B) The non-extinguishment principle applies to the act.Compensation(1C) The native title holders concerned are entitled to compensation for the act in accordance with Division 5. who pays compensation(1D) The compensation is payable by: (a) if the act is attributable to the Commonwealth—the Crown in right of the Commonwealth; or (b) if the act is attributable to a State or Territory—the Crown in right of the State or Territory.(61) Schedule 1, item 9, page 57 (line 1), omit "Leases, licences etc. ", substitute:24HB Leases, licences etc. relating to water and airspaceNote: Renumber subsections 24HA(2) to (7) as subsections (1) to (6) of new section 24HB.(62) Schedule 1, item 9, page 57 (line 2), omit "also".(63) Schedule 1, item 9, page 57 (line 11), omit subsection (3), substitute:(3) Subject to compliance with Subdivision P (which deals with the right to negotiate), the act is valid.I can count like anyone else can. Senator Bolkus has indicated that the Labor Party has no intention of legislating in a positive way ahead of common law determination on these issues. That is very sad, because I do not know that that is their decision on all areas of common law and legislative law. It does seem a pity. In 1993, when we came together in this place, what we did was to pare back the common law decision. When we have dealt with these laws before, we have dealt with shoring up other land interests to try to reduce the potential for common law development from indigenous Australians. That is a very sad precedent.I do not go along with that precedent. I do not think there is anything written in stone that says that that is the way it has to be. I expressed an abhorrence about the general idea of pre-empting and reducing rights for native title claimants who are seeking them through common law. Isn't it interesting? Again and again during this debate, Senator Minchin has said, `Aha! We're not taking away people's common law rights.' Yet, ironically, here we are pre-empting common law and cutting it off at the pass. So I will still move these amendments and at least put on the record where we believe people should be moving in this very important debate.Amendments not agreed to.DX5MARGETTSSenator Margetts—For the sake of time, could my vote and that of my colleague Senator Brown be registered as voting for those amendments?10000CHAIRMANThe CHAIRMAN—There being no objection, it is so ordered. Are you going to move 16 and 19, Senator Margetts?DX5MARGETTSSenator Margetts—I thought I had moved them all, but 16 and 19 were minor consequential amendments anyway and having lost that vote, it is of no avail.10000CHAIRMANThe CHAIRMAN—We have taken it that you did.Progress reported.Business22332233Motion (by Senator Hill)—by leave—proposed:That:(1) The order of the Senate of 6 April 1998 be modified to provide that the Senate continue to sit today from 11.30 p.m. till 1.10 a.m.(2) The question for the adjournment shall be proposed at 12.30 a.m.(3) On Wednesday, 8 April— (a) The hours of meeting shall be 9.30 a.m. to 6.30 p.m. and 7.30 p.m. to 12.40 a.m.; (b) The routine of business from 7.30 p.m. to 12 midnight shall be government business only; and (c) The question for the adjournment of the Senate shall be proposed at 12 midnight.21:05:002233Brown, Sen BobSenator BROWNQD4TASAG00—On the matter of native title, the government is taking the country further into darkness; it might as well take the Senate with it.Question resolved in the affirmative.Bills2233r4552233Consideration resumed.10000CHAIRMANThe CHAIRMAN—The committee is considering the Native Title Amendment Bill 1997 [No. 2] . Is it the wish of the committee that we pass to 7, which is renewals? There being no objection, it is so ordered.21:07:002233Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—We are dealing with renewals discretely. I move:(27) Schedule 1, item 9, page 59 (line 18), omit "and", substitute "or".(28) Schedule 1, item 9, page 59 (after line 18), at the end of paragraph (c), add: (iv) if the original lease etc. was a non-exclusive pastoral lease covering an area greater than 5,000 hectares and the majority of the area covered was not required or permitted to be used for purposes other than pastoral purposes—have the effect that the majority of the area covered by the renewed, re-granted, re-made or extended lease is required or permitted to be used for purposes other than pastoral purposes; and(29) Schedule 1, item 9, page 60 (line 17), at the end of paragraph (c), add "(other than a mining lease)".These amendments will ensure that the renewal provisions cannot be used to avoid the primary production provisions, such that if a non-exclusive pastoral lease that covers more than 5,000 hectares is not permitted to be used for non-pastoral purposes, these amendments ensure that section 241C does not permit a renewal, regrant, remaking or extension of the term of that lease if doing so would have the effect of permitting the majority of that lease to be used for non-pastoral purposes, thus making the renewals consistent with the government's primary position.These amendments reflect the policy implemented by changes made to section 24GB by the Senate last December through government amendment 21. Government amendment 29 ensures that the renewal provisions in section 241C do not apply to the renewal of a term mining lease that results in the grant of a perpetual mining lease in its place. This addresses criticism that the renewal provisions contained in the bill should not permit the renewal of mining leases for an indefinite period. I commend those amendments.21:07:002233Bolkus, Sen NickSenator BOLKUSXE4SAALP00—The opposition supports amendments 27, 28 and 29. We do have a problem with one aspect, but we will get to that later on. This section raises issues which were debated last time. In the earlier debate, opposition 124A had some success in the Senate. We have been working through our provisions over the interim period and we have been able to develop our position to a new one which is now reflected in opposition amendments N27, N21, N22 and N23. Our new approach is to replace section 26D(1) with a new subsection which excludes the right to negotiate from the renewal of mining leases in a much narrower range of circumstances than the government's. As I say, this is all embodied in those four amendments.We have enormous difficulty with the government's position. The government's position goes too far. Sections 26(2)(e) and 26D(1) remove the right to negotiate from mining tenement renewals. This means that under the government's provisions mining leases can be extended or renewed without the application of the right to negotiate. The only limitation that the government imposes on this exclusion is that the area of the mine lease cannot be extended. This means, for instance, that native title holders will not be afforded the protection of the right to negotiate where a renewed mining lease, for instance, is of substantially larger scale. It may use different technology or processes of extraction, it may change from underground to open-cut and to different waste disposal mechanisms, it may employ different means of transporting ore and minerals, and may also apply different environmental standards for land use and rehabilitation. In other words, there could be greater impact on the land and waters concerned under the government's proposal. There could be a new impact on native title because of that greater impact, but that is not accommodated for in the government's plan.The other criticism we have of the government's position is that their amendments extend to intermediate period acts, so the right to negotiate will not apply to the renewal of mining leases which were invalidly granted due to the failure of state and territory governments to comply with the Native Title Act.It has been pointed out to me that we were going to deal with these with the right to negotiate, but I am trying to work out why we have a section here called `Renewals'. As far as I am concerned, renewals covers the renewals here. It seems from over the other side that they would rather deal with this later on. I do not know if that is appropriate, because if you look at the running sheet for renewals opposition amendments N21 to N23 are included. I think it is probably more appropriate that we proceed with them now.We maintain that our alternative is a fairer balance. We maintain consistency with the concerns that we raised previously in the Senate. Our concerns were that an activity under a renewed mining lease may have a substantially greater impact on native title than an activity which occurred under the old mining lease. In such circumstances, we believe the right to negotiate should apply to the renewal. Factors such as changes in technology, markets, waste disposal and other variables can have enormous implications for native title holders where leases are renewed.Our concerns are multifaceted and varied. They go, for instance, to the issue of an underground mine being converted to an open-cut mine, such as in circumstances where high-grade seams are mined out. Also, if a mine is increased substantially in size, it may entail the retention of a substantially larger work force, the construction of mining townships and infrastructure, without recognition of the necessary environmental and social impacts, such as liquor outlets, people visiting and desecrating sacred sites and effecting a substantial change to the way of life of native title holders.We maintain that the government does not take these factors into account sufficiently. Our alternatives, as expressed in the amendments I have referred to, do so. We do weigh greater impact into the occasion through all these different factors. I maintain that we provide a fair balance. In a sense we adopt the government's procedure but we qualify it by limiting the exclusion on the right to negotiate from mining renewals where such renewals, grants, rights, for instance, do things which have a greater impact on the land and waters concerned and consequently on native title. Of course, as reflected upon earlier, the opposition amendments do not extend the application of 26D(1) to intermediate period acts.We also have a consequential amendment to opposition N27, which inserts subsection (1A) into 24(1)(c) to maintain consistency between 26D(1), 24(1)(c) and so on. These amendments bring the excluded renewals within subdivision I and provide, as with other renewals, for compensation, which we believe is important, if it arises, to ensure that the just terms requirement of the constitution are complied with.It has been pointed to me that I might have said that mining lease renewal provisions do not cover the intermediate period. I did mean to say—I hope I did say—that our mining lease renewal provisions do cover the intermediate period as well. With respect to these renewal provisions, we have worked diligently at them to try to ensure that any renewal with greater impact is a renewal which attracts the right to negotiate and also attracts a right to compensation.21:14:002235Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I indicate that the Democrat-Greens (WA) amendments are to totally oppose subdivision I. I am not sure which way we will vote on these, and I do not have a suggestion for the committee. However, the Democrats have a particular affection for the topic of renewals of leases because it was the Democrats in 1993 that inserted an amendment that became section 235 of the 1993 Native Title Act. At that time, on 21 December 1993, my colleague former Senator Sid Spindler moved the amendment that now appears in the act. It is important to note that it was a very different time in Parliament House and, indeed, a very different time in Australia—the pre-Hanson era, I would suggest.The single element that distinguished the process in 1993 is the value place on indigenous people. At that time, Senator Spindler said the following, and I quote from Hansard page 5460:According to our legal opinion, when a valid lease was nearing the end of its term and native title had been extinguished by that valid lease that native title could be revived between the time of the old lease coming to a conclusion and a new grant being made.Continuing, Senator Spindler said:I believe that this amendment is important. I commend it to the coalition parties and in particular to those National Party senators who crossed the floor last time.You can see the Democrats have been supportive of certainty, but only when that certainty has been accompanied by the consent of the Aboriginal and Torres Strait Islander people. We believe the government amendments just go too far. The Democrat-Greens (WA) amendments will maintain the existing Native Title Act by reference to a legally enforceable right created before 1 January 1994—section 25—and a no larger proprietary interest than the original interest—section 235(7).10000CHAIRMANThe CHAIRMAN—The question is that amendments 27, 28 and 29, as moved by the government, be agreed to.21:17:002235Bolkus, Sen NickSenator BOLKUSXE4SAALP00—May I suggest that we move 27 and 28 together and leave 29 for a separate deliberation.10000CHAIRMANThe CHAIRMAN—To be voted upon separately?XE4Bolkus, Sen NickSenator BOLKUS—Yes.10000CHAIRMANThe CHAIRMAN—The question is that government amendments 27 and 28 be agreed to.21:17:002235Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I seek your guidance here. Should we also, at this stage, be deliberating on the ALP amendments N21 to N23, before we put the government's amendments?10000CHAIRMANThe CHAIRMAN—You can discuss them, Senator Bolkus, but they cannot be moved until we have disposed of the government amendments.XE4Bolkus, Sen NickSenator BOLKUS—I am trying to make sure that we do not, by passing the government's amendments, foreclose any deliberations.10000CHAIRMANThe CHAIRMAN—I shall put the government amendments and then I shall move to yours.XE4Bolkus, Sen NickSenator BOLKUS—Thank you.10000CHAIRMANThe CHAIRMAN—The question is that government amendments Nos 27 and 28 be agreed to.Question resolved in the affirmative.10000CHAIRMANThe CHAIRMAN—The question is that government amendment No. 29 be agreed to.Question resolved in the affirmative.Amendments (by Senator Bolkus) proposed:(N21) Schedule 1, item 9, page 58 (line 28), after "authority", insert ", other than one which permits mining,".(N22) Schedule 1, item 9, page 59 (lines 24 to 26), omit paragraph (e).(RN23) Schedule 1, item 9, page 59 (after line 26), after subsection (1), insert: (1A) A future act is also a permissible lease etc. renewal if: (a) the original lease etc. was the creation of a right to mine; and (b) the future act is a renewal or extension of the original lease etc.; and (c) either: (i) the original lease etc. was granted on or before 23 December 1996; or (ii) the grant of the original lease etc. was a permissible lease etc. renewal or a pre-existing right-based act; and (d) the future act does not: (i) confer a right of exclusive possession over any of the land or waters covered by the original lease etc.; or (ii) otherwise create a larger proprietary interest in the land or waters than was created by the original lease etc.; or (iii) create a proprietary interest over any of the land or waters covered by the original lease etc., where the original lease etc. created only a non-proprietary interest; or (iv) confer on the grantee rights to do things which will have a greater impact on the land or waters concerned than the rights conferred by the earlier right; or (v) confer a right to mine minerals which were not included in the earlier grant; and (e) the area to which the original lease etc. relates is not extended; and (f) the term of the renewal or extension is not longer than the term of the original lease etc.; and (g) if the original lease etc. contains, or is subject to, a reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders—the renewed or extended lease either contains, or is subject to, the same reservation or condition.(RN27) Schedule 1, item 9, page 87 (line 25) to page 88 (line 5), omit subsection (1), substitute: (1) This subdivision does not apply to an act consisting of the creation of a right to mine if: (a) the creation of the right is done by: (i) the renewal; or (ii) the extension of the term; of an earlier right to mine; and (b) the earlier right: (i) was created on or before 23 December 1996 by an act that is valid (including because of Division 2 or 2A); or (ii) was created by an act to which this Subdivision applied that was not invalid to any extent under section 28; and (c) the area to which the earlier right relates is not extended; and (d) the term of the renewal or extension is not longer than the term of the earlier right; and (e) the renewal or extension: (i) does not confer on the grantee rights to do things which will have a greater impact on the land or waters concerned than the rights conferred by the earlier right; and (ii) without limiting subparagraph (i), does not confer a right to mine minerals which were not included in the earlier grant. Note: For compensation in relation to acts of this class, see Subdivision I.10000CHAIRMANThe CHAIRMAN—I do not have amendment 27 on my running sheet, Senator Bolkus.XE4BOLKUSSenator Bolkus—No, you do not and I do not have it on mine, but I do have it on my working sheet. At this stage we could proceed with N21, N22 and N23 and once we will do that we could work out where N27 should be voted on.21:19:002237Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I record the government's opposition to those amendments. Most of the things here are covered by the government's bill except that this now would not allow a renewal and therefore is subject to the renewal of the right to negotiate. If the term of the renewal extension is longer than the term of the original lease, I think that would justifiably cause considerable concern to the mining industry. All the chin wagging that went on in Queensland does not seem to have resolved all the difficulties which the mining industry has with the ALP's position. This goes, again, to this fundamental question of native title and what affects it.What affects native title is the rights granted under a lease, that is, what can be done under the lease; not the term of the lease. The mere term of the lease has absolutely nothing to do with the impact of what can be done under a lease on native title. We have ruled out, in our amendments already passed, any proposal to allow mining leases to be made perpetual. We do not see why renewals of mining leases cannot contemplate a longer term without running into the real difficulties associated with then having to go through a right to negotiate process, when you have a major, multimillion dollar mining operation under way, to then have to subject that to a right to negotiate simply because a longer term is sought, when the term itself has nothing to do with the impact of what is done under the lease on the native title. So we do oppose the amendments.21:21:002237Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I would like to make two points of clarification. Amendment N27 is the substantive amendment and N21, N22 and N23 are the consequential ones. So I suggest that we put them all together.Amendment N27 dictates the parameters through which a right of renewal is allowed without triggering the right to negotiate. Can I also say at this stage to Senator Minchin that what we are concerned about is not to increase the previous right, area or impact, and the provision we have in our clause is that the term of the renewal extension is not longer than the term of the earlier right. If it was to be longer, then it would be an increase in that right and, as a consequence, we think it should not qualify. Extension for the same length of time is sufficient, but there is obviously capacity for a further renewal 10 or how ever many years down the track.21:22:002237Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Briefly, this group of amendments is probably one of the reasons why the ALP had trouble with the Senate moving the 1997 position in bulk. It needs to be recognised that this is a step back in terms of the ALP's position for indigenous rights from where they were at the end of 1997. It is, I have to admit, still better than the government's position, but it is at the same time a step back from the position that the ALP took in 1997.21:22:002237Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—Madam Chair, I need to seek some clarification. It has just been suggested to me that N27 really comes under the right to negotiate. I think if we start taking a section out of amendments dealing with the right to negotiate, we are going to get ourselves in a mess. As I understand it, N21, N22 and N23 are not consequential. I am sure there is some relationship, but they are free standing and N27 is a right to negotiate amendment. Therefore, I would suggest that we do not deal with it now but we just deal with the ones dealing specifically with renewals.21:23:002237Bolkus, Sen NickSenator BOLKUSXE4SAALP00—The trouble here is that you cannot deal without the right to negotiate in respect of renewals without dealing with it in some capacity. This is where the running sheet first bowled it up. If you are talking about a right to renewal, you are talking about how that right is exercised and immediately you are talking about a right to negotiate. Senator Minchin, we can have the debate further down the track if you like, but I think it is important that we have a discussion on it. If you want to move the whole lot down the track to the right to negotiate, then we can have another debate again. I anticipated this debate coming up under the definition of right to negotiate, but it appears on this running sheet as renewals.10000CHAIRMANThe CHAIRMAN—It is not on my running sheet, Senator Bolkus, not on renewals.XE4Bolkus, Sen NickSenator BOLKUS—Sure, but if you are dealing with renewals, you are dealing with the application of the right to negotiate with regard to renewals. That is our concern here. As I said, I do not mind deferring at all under the umbrella of right to negotiate if you would like. We have had a discussion already. We can move it to later on. For me, whether we vote on it here or vote on it later makes no real difference. But recognise that, if you are dealing with renewals, you are talking about the right to negotiate in respect of them and it can fit under either one of the two definitions.21:25:002238Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I am wondering whether I heard the adviser participating in the debate then.10000CHAIRMANThe CHAIRMAN—Inadvertently, Senator.XE4BOLKUSSenator Bolkus—Just enthusiastic, Senator.21:25:002238Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—Madam Chair, I do not think it really matters in reality if we deal with N27 now, but it was not there because it is listed under the right to negotiate. It can be dealt with discretely, but I am happy to deal with N27 now as well as the other amendments dealing with renewals.10000CHAIRMANThe CHAIRMAN—The question is that opposition amendments N21 to N23 and N27 be agreed to.Amendments agreed to.10000CHAIRMANThe CHAIRMAN—We now move to the Greens (WA) and the Democrats. Are you wishing to pursue anything there?21:26:002238Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I would not want to have a division, but our best option was to oppose subdivision 1 altogether. So if you put that the subdivision stand as printed, we can say no and we will find out what the committee wants to do.10000CHAIRMANThe CHAIRMAN—The question is that schedule 1, item 9, subdivision 1, as amended, stand as printed.Question resolved in the affirmative.10000CHAIRMANThe CHAIRMAN—We now move to section 24IB.21:27:002238Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I indicate that the Democrats-Greens (WA) amendment is to oppose this section. So, again, if you put it to the committee that it stand as printed, we will indicate our opposition.10000CHAIRMANThe CHAIRMAN—The question is that schedule 1, item 9, section 24IB stand as printed.Question resolved in the affirmative.21:27:002238Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I move:(66) Schedule 1, item 9, page 58 (line 28), omit "lease, licence, permit or authority", substitute "commercial, agricultural, pastoral or residential lease".(67) Schedule 1, item 9, page 59 (lines 1 and 2), omit "23 December 1996", substitute "1 January 1994".(68) Schedule 1, item 9, page 59 (line 4), omit "or a pre-existing right-based act".(69) Schedule 1, item 9, page 59 (lines 5 to 9), omit subparagraph (b)(iii).(70) Schedule 1, item 9, page 59 (line 22), omit ", licence, permit or authority".(71) Schedule 1, item 9, page 59 (lines 25 and 26), omit ", licence, permit or authority".These amendments remove the extension of the renewals provision to cover a licence, permit or authority—that is, in addition to covering leases. Amendment No. 67 reverses the extension of the application date of the Wik decision of 23 December 1996. It should date back to 1 January 1994. Amendments Nos 68 and 69 are minor consequential amendments. I think that covers it.10000CHAIRMANThe CHAIRMAN—Is someone planning to move amendments 72 to 77 as well, or is that not going to happen?HX5Woodley, Sen JohnSenator WOODLEY—To help the committee, yes. I move:(72) Schedule 1, item 9, page 59 (lines 28 and 29), omit "leases, licences, permits or authorities are granted in place of, respec tively, a single lease, licence, permit or authority,", substitute "leases are granted in place of a single lease".(73) Schedule 1, item 9, page 59 (lines 31 and 32), omit ", licence, permit or authority".(74) Schedule 1, item 9, page 60 (line 2), omit "lease, licence, permit or authority", substitute "commercial, agricultural, pastoral or residential lease".(75) Schedule 1, item 9, page 60 (lines 4 and 5), omit ", licence, permit or authority".(76) Schedule 1, item 9, page 60 (line 6), omit ", licences, permits or authorities".(77) Schedule 1, item 9, page 60 (line 8), omit ", licence, permit or authority".They are mostly minor consequential amendments.Amendments not agreed to.21:29:002239Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I move:(14) Schedule 1, item 9, page 60 (lines 14 to 17), omit paragraphs (4)(b) and (c).Clause 24IC deals with `future acts that are permissible lease etc. renewals'. It talks about what is a permissible lease future act. That is done in 24IC(1). The features are described in 24IC(4). At the moment, (b) and (c) describe as features of permissible leases:(b) the term of the new authority, or of any of the new authorities, is longer than the term of the old authority;(c) the new authority or any of the new authorities is a perpetual lease;Quite frankly, my amendment is very important. I put it to the Senate on the last occasion that we were discussing this matter and, therefore, I do not need to speak at length on the matter at this present point in time. I believe that `future acts that are permissible lease etc. renewals' should not include renewed leases or authorities which are for longer terms than the original lease or authorities. No case has been made for renewing leases for longer terms, let alone for making certain pastoral leases perpetual.The amendment that I am moving still ensures that pastoralists can, with certainty, renew their leases on identical terms and conditions without any need to negotiate. Any more is overreach, I believe, and could be used for long-term suppression of surviving native title. From memory, this was adopted on the last occasion, and I hope it will be adopted on this occasion.21:32:002239Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—The federal government opposed this amendment last time and we continue to oppose it for the same reasons. We believe it represents, particularly by the so-called states house, a completely unwarranted intervention in the land management responsibilities of the states, using a constitutional head of power which has nothing to do with land management per se—that is, the races power.There is, of itself, nothing about the term of the lease that has anything to do with the native title; it is the rights granted under the lease and what can be done under the lease that have the impact on native title, not the term of it. In practice, all you are requiring is that you have to renew it every time, so its practical effect is nil anyway. We think it is an unwarranted overriding of the authority of state governments. It serves no real purpose and should not be supported.21:33:002239Bolkus, Sen NickSenator BOLKUSXE4SAALP00—We support this amendment. It is consistent with the position we adopted earlier. This is more than a land management issue. If it were just a land management issue, it would not be before this parliament, it would be before six or seven state or territory parliaments. We are talking about a right different to a pure land management right, and that is why we have it before us. We support Senator Harradine's amendment, and we wish that the government would understand that it is more than a land management issue. I could go on at length, but it is in the interests of us all that we get through some of these less controversial issues as quickly as possible.21:34:002239Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I indicate that the Greens-Democrat amendment is exactly the same as Senator Harradine's and so we will support his amendment. I underline what Senator Bolkus and Senator Harradine have said: it is much more than a land management issue. We were looking at upgrading leases to longer terms and upgrading some leases to perpetual leases. I will leave it at that.Amendment agreed to.21:35:002240Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I move:(80) Schedule 1, item 9, page 60 (lines 24 to 30), omit subparagraph (ii).(81) Schedule 1, item 9, page 61 (lines 1 to 6), omit paragraph (b) and the note.(82) Schedule 1, item 9, page 61 (line 7), omit "in any other case—".(83) Schedule 1, item 9, page 61 (line 9), omit "in any case—".Amendment No. 80 removes the proposed expansion of renewals to allow upgrade to non-primary production activity if associated with or incidental to primary production. That applies to section 24IC(4)(d)(ii). Amendment No. 81 removes the provision which ensures that upgrades to freehold under this subdivision extinguish native title. Amendment No. 82 ensures that the non-extinguishment principle applies to all renewals under the division, including upgrades to freehold. I commend the amendments to the Senate. Question put: That the amendments (Senator Woodley's and Senator Margetts's ) be agreed to.21:41:00The committee divided. (The Chairman—Senator S. M. West)28Allison, L. Bartlett, A. J. J.Bishop, M. Bolkus, N.Bourne, V. Brown, B.Campbell, G. Carr, K.Cook, P. F. S. Crowley, R. A.Denman, K. J. Evans, C. V. *Hogg, J. Lees, M. H.Lundy, K. Mackay, S.Margetts, D. Murphy, S. M.Murray, A. Neal, B. J.O'Brien, K. W. K. Ray, R. F.Reynolds, M. Schacht, C. C.Sherry, N. Stott Despoja, N.West, S. M. Woodley, J.27Abetz, E. 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.Ferris, J. Gibson, B. F.Heffernan, W. *Herron, J.Lightfoot, P. R. Macdonald, I.Macdonald, S. MacGibbon, D. J.Minchin, N. H. Parer, W. R.Patterson, K. C. L. Payne, M. A.Reid, M. E. Synon, K. M.Tambling, G. E. J. Tierney, J.Troeth, J.Collins, J. M. A. Hill, R. M.Conroy, S. Kemp, R.Cooney, B. McGauran, J. J. J.Faulkner, J. P. Vanstone, A. E.Forshaw, M. G. Newman, J. M.Gibbs, B. Knowles, S. C.McKiernan, J. P. O'Chee, W. G.Quirke, J. A. Alston, R. K. R.* denotes teller(Senator Ian Campbell did not vote, to compensate for the vacancy caused by the resignation of Senator Bob Collins.)Question so resolved in the affirmative.10000CHAIRMANThe CHAIRMAN—We will move to the reservations group.21:45:002240Bolkus, Sen NickSenator BOLKUSXE4SAALP00—We recognise that the government has an amendment in relation to reservations, which is our third best option, and we will not be looking to support that, pending deliberation on our amendments, of course. What we are dealing with here is a current Native Title Act which does permit acts affecting native title to occur on reserves or leases without the involvement of the native title holders only if they are carried out in good faith under a reservation, condition, permission or authority created prior to 1 January 1994 and are carried out in accordance with the purpose of the reservation, condition, permission or authority.Subparagraph 24JA(1)(e)(ii), which was accepted by the Senate, extends the application of this principle on reserves to any act so long as its impact is no greater than the impact that any other act that could have been done under or in accordance with the reservation would have had. Proposed section 24JA also extends the application of subdivision J to the date of the Wik decision, 23 December 1996, depriving, therefore, native title holders involvement in an even greater area of land brought within reserves or purpose leases between 1 January 1994 and 23 December 1996.The effect of the government's provisions, the effect of the subdivision, is to deny native title holders any involvement in the management—I stress `management'—of a national state or territory park intended to preserve the natural environment of an area. It is no surprise, therefore, that this has caused considerable alarm to indigenous people. In recognition of that concern, the government now intends to move amendment No. 30, which is an improvement on the current position in the bill, but I must say is somewhat of a token improvement.Government amendment 30 amends subsection 24JB by adding new subsection (7), a subsection which provides for the notification—just notification—of registered native title bodies corporate, registered native title claimants and native title rep bodies regarding the creation of a plan for the management of a national state or territory park intended to preserve the natural environment. So there is notification and only in respect of the creation of a plan of management. The notified parties then have an opportunity to comment on the creation of the management plan.There are a couple of concerns here. First of all, the guarantee of notification is welcome, but we have to acknowledge that it does nothing more than really extend the current provisions relating to public notification practices and procedures adopted nationally in the states and territories in relation to such parks, and adapts those general procedures and provisions to indigenous Australians. It is a right to comment, which is in essence the right which current practice allows to the general public. So one can make the claim, I think quite validly, that the amendment is somewhat tokenistic, particularly when you keep in mind that native title is more than a general public interest. Native title is something which gives people a right greater than a general public interest right.Also it needs to be acknowledged and recognised by the Senate that the High Court clearly stated in Mabo that national parks were an obvious place where native title exists. So we have here an extension of a public right when the High Court made it clear that national parks were an obvious place where native title exists. Not only is there just notification, but there is no obligation to take into account the comments of the native title holders. Our other concern is that the proposal covers only the management plans; it does not cover variations or developments in respect of those management plans.So we will proceed with opposition amendments RN20 and RN20A. They differ from the government proposal in two important aspects. We extend the same procedural rights contained in subsection (7) to the variation to a significant extent of plans. Variations also need to be brought under the umbrella here. The application of subsection (7) is also extended to developmental uses which are likely to have a significant impact on the natural environment or the cultural or spiritual concerns of native title holders in relation to an area. This is necessary because some states do carry out massive variations to management plans without an appropriate process of engagement of interested parties.Amendment RN20A builds on the principles in government amendment 30 by inserting a new subsection (9) into section 24JB. The procedural rights afforded to native title holders are, we would maintain, modestly extended to a right for rep bodies, registered native title bodies corporate and registered native title claimants to be consulted in good faith in relation to the land or waters covered by the act. We say here that good faith is the imperative part of this provision.The protection of sacred sites must also be provided for under the new amendment. It must be noted here that what we are proposing is not a new general heritage provision but one which is dependent on the existence of native title. We maintain that this aspect of the amendment is necessary due to the lack of effective heritage protection in most states. It is a guarantee that it would be of no effect in those states where there is already legislation or practices that ensure that sacred sites and areas of significance are protected. So RN20A will give native title holders some involvement in the formation and implementation of plans of management and give them some more meaningful role and some more meaningful respect for their interests in the whole process.21:52:002242Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I formally move government amendment No. 30 under the heading of Reservations:(30) Schedule 1, item 9, page 64 (after line 25), at the end of section 24JB, add:Notification of national, State and Territory park management plans (7) If the act consists of the creation of a plan for the management of a national, State or Territory park intended to preserve the natural environment of an area, then, before the act is done, the person proposing to do the act must: (a) notify, in the way determined in writing by the Commonwealth Minister, any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the land or waters covered by the plan that the act is to be done in relation to the land or waters; and (b) give them an opportunity to comment on the act. Note about Schedule 1, item 9: The heading to subsection 24JB(6) (page 64, line 13) is replaced by the heading "Notification of public works ".As Senator Bolkus intimated, this amendment deals with the question of national parks and the appropriate procedural rights that should attach to them—remembering, as I said, that native title is not extinguished by a national park or reservation for a national park. The amendment imposes a notification and consultation requirement in relation to the formulation of a plan of management for the park. That will enable any native title holders, registered claimants and representative bodies with interests in the park to have that opportunity to be involved in, and comment on, the management plan. We do think it is a sensible amendment and I accept that it would be supported. But what the ALP wants to do is to go further than is warranted.We are talking about the federal parliament exercising the races power to intervene in the responsibilities of state governments in a way that we think is unwarranted, particularly when it is proposed in—of all places—the states' house. It remains the states' house as far as we are concerned. The question of national parks is one for state authorities and we think this proposition would effectively involve any change to the plan—that is, potentially anything done in a national park would first have to go through a process that is described as a consultation in good faith with any representative body, registered native title body corporate or registered native title claimant.We think this is completely unworkable in practice given the propensity of native title claimants to have recourse to the Federal Court at every opportunity—which, as we have seen, is basically making the right to negotiate process unworkable. If something happens they do not like, parties are too enthusiastic to rush off to the Federal Court. If they do not like something that is done in a national park, all they do is bring a Federal Court action which says, `We were not consulted in good faith,' and then for six months or a year of argument about whether or not what was done, in terms of a process, was consultation in good faith. So we think this is potentially another huge legal bottleneck in relation to national parks.Again, to require that sites and areas of significance to native title holders are protected before the act which relates to the management of national parks is done is going to very severely interfere with the states' management of national parks, which—after all—are for the benefit of all of us. National park management is very good and everything they do, by and large, is for the benefit of the park and for the protection of the environment. This could very seriously interfere with that sensible management. That sort of thing should not be covered under the Native Title Act. It should be covered, quite properly, under heritage legislation which all states have. It just provides another process that has to be gone through and another avenue for legal recourse to be taken by those who wish to stop a particular activity occurring. Therefore, we do think this goes too far and what the Senate ought to do is accept the amendment we are proposing.21:56:002243Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I would describe the government's attempts at amending this section as being fairly cursory and in that sense, unsatisfactory to the Greens (WA). They do require some notification but the problems largely remain.In the running sheet, right at the beginning or in the first line, it would be noted that we were intending to oppose the subdivision. When we get to it I would like to defer to Senator Woodley so that he can put his amendment 937 and we swap that order, to a large extent, because I think 937 does the job very well. Opposition to the subdivision will only be necessary if neither the Democrats' amendment nor the ALP amendment gets support in the Senate.Subdivision J is intended to implement part of point 7 of the 10-point plan, that is, future actions for the management of any existing national park or forest reserve would be allowed. This is misleading as governments already have sufficient power under the current Native Title Act to manage these areas should negotiations with native title holders not result in agreement. The subdivision would prematurely stifle any meaningful negotiations about indigenous concerns and the possibilities of joint management of these areas. As drafted, subdivision J goes well beyond national parks and forest reserves—to apply to any land reserved for a particular purpose before 23 December 1996. Where an act is done in accordance with the existing reservation, that is, section 2(4), 24JA(1)(e)(i), and where the reservation predates 1 January 1994, the act will be valid under section 22(8)(iii) and section 25(1). There is no justification for extending this regime to acts not done in accordance with the reservation, especially as the likely effect is extinguishment as per section 24JB. If the reservation was done in the intermediate period, there is no reason to validate it. Governments have full power to compulsorily acquire native title and ordinary title if land is needed for public purposes in the future. This subdivision permits gratuitous extinguishment—another load of extinguishment. Leases to statutory authorities are in no different position to that noted above, that is, section 24 JA(2). Such a lease has similar effect with respect to native title as a reservation and there is the same absence of justification.I would like to give some examples of the impact this section of the government's bill will have. One example I would like to give of effect on native title holders is from Victoria. The area already held by Aboriginal people in Victoria is 3,083 hectares or 0.01 per cent of the state. This is a tiny portion of the total held by indigenous people in Australia. It is less in area than the holdings of the Tasmanian Aboriginal community.Land tenure in Victoria can be broken down as follows: freehold, 68.2 per cent; schedule 4 leases—mostly historical—unknown; vacant Crown land, negligible; pastoral leases, negligible; and other public land, 31.8 per cent. These figures come from the federal government's submission to the joint parliamentary committee on native title. Most of this land is either reserved for a public purpose, especially nature conservation and public recreation, or is a national, state or other park as follows: Crown land reserved for public purposes, 16.3 per cent of the state; and national and other parks, 12.7 per cent of the state.Thus the area of the state potentially affected by subdivision J of the proposed future act regime is 29 per cent. This amounts to almost the whole of the area available for native title claims in Victoria. It is likely to comprise almost the whole of the land already subject to native title determination applications in Victoria.There is a substantial amount of mining in Victoria. Approximately 200 exploration and mining licences are issued each year. However, it is likely that by far the greatest number of future acts will be compulsory acquisitions of native title. For instance, in 1995-96, the Department of Natural Resources and Environment sold 534 parcels of `surplus' Crown land. That comes from the DNRE annual report of 1995-96.I would also like to add some advice that has been given to me by the Australian Conservation Foundation. I quote:The proposed amendments to the NTA—that is, the Native Title Act—significantly detract from the rights and negotiating position of native title holders in reserves, particularly national parks.In effect, it will be as if the RDA—that is, the Racial Discrimination Act—did not apply to reserves. The proposed amendments will allow reserve land to be used for the reserve purpose if the land was reserved before 23 December 1996 . . . This is inconsistent with the operation of the RDA. Also, it ignores the distinction between reservation and subsequent extinguishment made in Mabo [No. 2]. Any reservation of an appropriate date will mean that land managers will be authorised to use land for that purpose despite the existence of native title rights. Extinguishment will be authorised in the case of public works . . .The proposed provision does require the previous reservation to be in place when the subsequent act is done . . . However, allow land to be used for non-reserve purposes where it would cause `no greater impact' than a use consistent with the reserve purpose. This provision is unworkable and provides no criteria for measuring impact . . . eg. does it include impact upon cultural and spiritual values of native title holders, . . .It is also inconsistent with the law concerning the use of reserves as it purports to authorise the use of a reserve for a purpose that is otherwise illegal such as allowing the construction of a commercial facility in a national park, that is, there is the potential that the Commonwealth is using its race power to undermine the land management systems of States and Territories merely because particular acts affect native title.Wouldn't that be a turn-up for the books, considering all the sanctimonious comments we have heard so far. I continue:The amendments have dramatic consequence for the management of reserve lands. No longer will land managers be required to consider the low impact future act test when undertaking management activities. The characterisation of land use purposes that are related to a reservation will determine the extent to which land managers may disregard subsisting native title rights in reserves established before 23 December 1996. It is telling that, in Woollahra MC supra ., Kirby P described the establishment of a ski resort in a national park as consistent with the dedication of a national park. It remains to be seen if State and Territory provisions which protect native title rights in reserves will continue or will be altered by hostile legislatures.Quite clearly, any change in this provision will be capitalised on by those states that have no care for either native title rights or the environment.The examples I have given in previous sections on such things as Crown to Crown grants, shifty little deals to try to get around native title, indicate that any loophole that we leave open for the states to get around these provisions to reduce native title rights and potentially damage the environment will be used. I urge the chamber to resist the use of this legislation to do so.22:05:002244Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I wish to speak to the amendments proposed by the Greens (WA) and the Democrats and then an amendment which I am proposing. I suggest, as Senator Margetts has said, that there is a logical way in which we can deal with this. Before doing so, I query something the minister said because I am not sure it is correct. The minister indicated that native title claimants could access heritage legislation in each state. I understand that there is no appropriate heritage legislation in New South Wales. It is a straight-out question; there is no trick in it. I wonder whether the minister knows the answer.22:07:002244Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I will take the question regarding New South Wales on notice. I am not an expert on the New South Wales legislation. My advisers think that the protection is provided in the specific legislation dealing with national parks, but we will get Senator Woodley an answer as soon as we can. I am sorry that I cannot provide it right now.22:07:002244Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I thank the minister. Even though we disagree, you generally do pretty well, so I am quite happy to allow that. Let me turn to the amendments. As Senator Margetts indicated, the Democrat-Greens (WA) amendment 84 seeks to oppose subdivision J as being inappropriate. Amendment 17 is consequential upon that. However, as Senator Margetts has said, Democrat amendments 1 and 2 on sheet 937 propose an amendment to the schedule, and we believe it is the best option. If we voted on that first and that got up, there would be no need for us to try to knock the schedule out, so our suggestion is that we might take Democrat amendments 1 and 2 first.I would like to give a bit of background to those amendments. The Democrat-Greens amendments seek to omit subdivision J under amendment 84. Amendment 17 is a consequential amendment flowing from that. I wish to give a brief explanation. Subdivision J, as proposed by the government, is intended to implement part of point 7 of the 10-point plan—that is, future actions for the management of any existing national park or forest reserve would be allowed. This is misleading, as governments already have sufficient power under the current Native Title Act to manage these areas should negotiations with native title holders not result in agreement. The subdivision would prematurely stifle any meaningful negotiations about indigenous concerns and the possibilities of joint management of these areas.As drafted, subdivision J goes well beyond national parks and forest reserves to apply to any land reserved for a particular purpose before 23 December 1996. When an act is done in accordance with an existing reservation and the reservation predates 1 January 1994, the act will be valid. There is no justification for extending this regime to acts not done in accordance with the reservation, especially as the likely effect is extinguishment.If the reservation was done in the intermediate period, there is no reason to validate it. Governments have full power to compulsorily acquire native title and ordinary title if land is needed for public purposes in the future. This subdivision permits gratuitous extinguishment. Leases to statutory authorities are in no different position from that noted in section 24JA(2). Such a lease has a similar effect with respect to native title as a reservation. There is the same absence of justification. I refer briefly to national parks, and other reserves more specifically. Approximately 23 per cent of Australia is reserve, including conservation parks and reserves. Proposed amendments contained in the bill would enable developments on reserves—for example, mining, tourism and dams—without reference to or consideration of the rights and aspirations of native title holders.Of equal significance is the prospect of state agencies finalising management plans or constructing camping facilities without any requirement to negotiate with native title holders. Some of Australia's most treasured reserves—Kakadu, Uluru and Nitmiluk, or Katherine Gorge—are Aboriginal owned and managed under negotiated leases and management plans. Their appeal combines natural beauty and bio-diversity with a thriving Aboriginal heritage. I am tempted to digress to say briefly that I have been visiting Uluru for 30 years and the improvement in the whole environment of Uluru, once it was handed back to the native title holders, has been quite remarkable.Further opportunities for viable representative reserve systems elsewhere—for example, Cape York and the Kimberleys—rely not only on Aboriginal support but on Aboriginal empowerment in planning and management. If native title rights are not upheld in Australia's reserve system, we risk the creation of a climate of division, antagonism and litigation on a scale which will seriously undermine the future of Australia's conservation estate.National parks and other Crown reserves are generally lands reserved for public purpose. The amendments allow reserve land to be used for non-reserve purposes where it would cause no greater impact than a use consistent with the reserve purpose. This is inconsistent with the law concerning the use of reserves, by authorising the use of a reserve for a purpose regardless of whether it is for private or public purposes, such as allowing the construction of a commercial facility in a national park—and we have seen that happen.The 10-point plan refers to mining in national parks, which is currently illegal in most states. The amendments allow vacant Crown land to be converted to a reserve as a low impact future act. The amendments also allow mining to proceed on reserves without negotiation with native title holders. States will be able to convert vacant Crown land to some type of reserve to facilitate mining projects. I might add that there are rumours of that happening in Queensland to a very large degree. Therefore, mining development is likely to accelerate in sensitive environments on Crown land.If the committee is prepared to accept the way we have suggested we might vote, Democrat amendments 1 and 2 would insert a process into subdivision J for involving native title holders more in co-management where land or waters have, before the Wik decision, been reserved or leased for any one of a number of purposes. These purposes mostly concern nature conservation and recreation. These are areas likely to look as if they had been left largely untouched. They are areas where public access and an indigenous connection are likely to have been maintained. More importantly, they are areas where coexistence is a real possibility.The amendments set up a process involving, firstly, notice to native title representative bodies, registered native title bodies corporate and registered claimants; secondly, a right to object to the person proposing to create or vary the management plan; thirdly, a right to be consulted in good faith for the purpose of minimising the impact of the act on native title and maximising indigenous participation in the management of land and waters; and, fourthly, a right to be heard by the arbitral body—most usually the National Native Title Tribunal—as to whether the latter act is to be done and, if so, on what conditions.Proposed section 24JB(5) sets out particular matters which are to be the subject of good faith consultation. They similarly relate to the matters set out in government section 26A(7), being matters to be taken into account in any approved exploration, et cetera, act or scheme approved by the Commonwealth minister under section 26A. They are in summary site protection, access to land and waters by native title holders and the way the act is to be done. If the committee is of a mind, I would suggest that we vote on Democrat amendments 1 and 2 at least prior to putting amendments 84 and 17.22:16:002246Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—It is obvious that we will be opposing these amendments. There are a number of things that Senator Woodley said which did not seem quite right to me—most particularly the question of future reservations. I remind you of what is in the explanatory memorandum, which is often the best description of what we are doing. The explanatory memorandum states:. . . Subdivision J ensures the validity of future acts on reserved land which meets certain conditions. These are, broadly, that:. the reservation happened on or before 23 December 1996 and is valid or validated;. it provided for the land to be used later on for a particular purpose; and. the future act is done in good faith under the terms of, or in accordance with, the reservation or in such a way as not to affect native title more than acts which the reservation did cover.I want to point out that the most important thing is that we are only talking about the fact that the reservation had to have happened on or before 23 December 1996. There was a suggestion in Senator Woodley's speech that we are talking about future reservations when we are not.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Watson)—The question is that the amendment No. 30 be agreed to.XE4BOLKUSSenator Bolkus—My amendment is intended to amend the government's amendment so you had better put the opposition amendment first.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Senator Minchin, will you withdraw your amendment and then we will put the opposition amendment.22:18:002246Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I seek leave to withdraw my amendment.Leave granted.22:19:002247Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I move:(RN20) Schedule 1, item 9, page 64 (after line 25), at the end of section 24JB, add: (8) If the act consists of the variation in a significant respect, of a plan for the management of a national, State or Territory park intended to preserve the natural environment of an area or a development or use which is likely to have a significant impact on the natural environment or the cultural or spiritual concerns of native title holders in relation to an area, then, before the act is done, the person proposing to do the act must: (a) notify, in the way determined in writing by the Commonwealth Minister, any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the land or waters covered by the plan that the act is to be done in relation to the land or waters; and (b) give them an opportunity to comment on the act.(N20A) Schedule 1, item 9, page 64 (after line 25), at the end of section 24JB, add: (9) If the act is an act mentioned in subsections (7) or (8), then before the act is done, the person proposing to do the act must also: (a) consult in good faith with any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the land or waters covered by the act; and (b) ensure that sites and areas of significance to native title holders are protected.This is a matter of `Trust us, we are the government.' I used to say that once. The indication is that Senator Harradine has said that he will not be supporting the opposition amendments. Senator Harradine is not here so it is very hard to get that verified. Maybe we should put the Democrat-Green amendment first, which is a more comprehensive one. Whilst we are putting that, Senator Harradine may resurface. I seek leave to withdraw my amendment. It is not that I do not trust the government, but I would rather do this formally without the need for recommittal.Leave granted.22:20:002247Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I move:(1) Schedule 1, item 9, page 63 (line 26) to page 64 (line 3), omit subsections 24JB(2) and (3), substitute: (2) The non-extinguishment principle applies to the act.(2) Schedule 1, item 9, page 64 (after line 25), after section 24JB, insert:24JC Reservation, leases etc (1) Section 24JB does not apply to a future act (the later act ) if : (a) an act (the earlier act ) took place before the later act and on or before 23 December 1996 and the earlier act was a reservation or grant of a lease under which the whole of any land or waters was to be used for: (i) national and other parks; or (ii) flora and fauna areas; or (iii) natural features and scenic areas; or (iv) wilderness/ecological areas; or (v) heritage rivers and natural catchment areas; or (vi) recreation areas; or (vii) water frontage and streamside areas; or (viii) bushland and forestry areas; or (ix) such other uses as are prescribed; and(b) the later act consists of the creation, or variation, of a plan for the management of the land and waters subject to the earlier act, or a development or use which is likely to have a significant impact on the natural environment or the cultural or spiritual concerns of native title holders in relation to an area;unless, before the later act is done, the person doing the later act satisfies the requirements of subsections (2) to (7). (2) The person proposing to do the later act must notify all: (a) registered native title bodies corporate; and (b) registered native title claimants; and (c) representative Aboriginal/Torres Strait Islander bodies;in relation to any of the land or waters that will be affected by the act that the act is to be done in relation to the land or waters. (3) Any party referred to in subsection (2) may lodge an objection to the doing of the later act with the person proposing to do the later act within 2 months of being notified. (4) If the person proposing to do the later act still proposes to do the later act 2 months after having received any such objection, any of the persons notified under subsection (2) may apply to the arbitral body for a determination as to: (a) whether the later act is to be done; and (b) any matter relating to the doing of the later act which will include as conditions to the doing of the act, the matters referred to in subsection (7). (5) The arbitral body must make such a determination within 6 months of the application referred to in subsection (4). (6) The person proposing to do the later act and the person who will do anything authorised by the later act must consult in good faith with: (a) any person or body covered by paragraph (2)(a) or (b); and (b) any person identified by the representative Aboriginal/Torres Strait Islander body in relation to the land or waters concerned as a holder of native title in the area affected by the act;for the purposes of: (c) minimising the impact of the act on the exercise of native title rights and interests in relation to land or waters that will be affected by the act, and in particular about the matters set out in subsection (7); and (d) maximising native title holder: (i) participation in the development and implementation of any management plan; and (ii) participation in management of the land or waters; and (iii) control over the use of the land or waters. (7) The matters referred to in paragraph (4)(b) and (6)(c) are: (a) the protection of any area or site, on the land or waters to which the native title rights and interests relate, of particular significance to the persons holding the native title in accordance with their traditional laws and customs; and (b) any access to the land or waters to which the native title rights and interests relate by: (i) those persons; or (ii) any person who will do any thing that is authorised because of, results from, or otherwise relates to, the doing of the act; and (c) the way in which any other thing that is authorised because of, results from, or otherwise relates to the doing of the act, is to be done.I have spoken to these amendments. They insert substantial words into the government's section 24JB subdivision J.22:20:002248Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I am told that we will not have to wait all that long before we do get an indication of which way Senator Harradine is voting. Before we put it to a vote, it might be appropriate for me to talk for another 10 seconds and then ask Senator Harradine to give an indication of his position.22:20:002248Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—The ALP amendment actually adds to our amendment. It does make more sense, irrespective of when we deal with the Democrat amendments, that our amendment be put and then we look at the ALP amendments.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—The question is that Democrat amendments Nos 1 and 2 be agreed to.Amendments not agreed to.Amendment (by Senator Minchin) proposed:(30) Schedule 1, item 9, page 64 (after line 25), at the end of section 24JB, add:Notification of national, State and Territory park management plans (7) If the act consists of the creation of a plan for the management of a national, State or Territory park intended to preserve the natural environment of an area, then, before the act is done, the person proposing to do the act must: (a) notify, in the way determined in writing by the Commonwealth Minister, any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the land or waters covered by the plan that the act is to be done in relation to the land or waters; and (b) give them an opportunity to comment on the act. Note about Schedule 1, item 9: The heading to subsection 24JB(6) (page 64, line 13) is replaced by the heading "Notification of public works ".10:21:002249Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I have been listening to the debate on this as best I can. Whilst the opposition's amendment has some meritorious factors, if you are going to a question of good faith and if you are going to a number of issues that are raised there, my concern is that you are not going to have the certainty that you want because you are opening it up for persons who may be disaffected to take the issues to the Federal Court on the particular provisions that are in the opposition's amendment. Prior to my being called out of chamber to discuss certain matters with key people, I thought I had indicated that I would be supporting the government's amendment. I think the government should at least be commended because they have introduced this amendment. It takes some time for people to realise that amendments of this character should be introduced. I think it is a good amendment.Amendment agreed to.22:23:002249Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I move:(RN20) Schedule 1, item 9, page 64 (after line 25), at the end of section 24JB, add: (8) If the act consists of the variation in a significant respect, of a plan for the management of a national, State or Territory park intended to preserve the natural environment of an area or a development or use which is likely to have a significant impact on the natural environment or the cultural or spiritual concerns of native title holders in relation to an area, then, before the act is done, the person proposing to do the act must: (a) notify, in the way determined in writing by the Commonwealth Minister, any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the land or waters covered by the plan that the act is to be done in relation to the land or waters; and (b) give them an opportunity to comment on the act.(N20A) Schedule 1, item 9, page 64 (after line 25), at the end of section 24JB, add: (9) If the act is an act mentioned in subsections (7) or (8), then before the act is done, the person proposing to do the act must also: (a) consult in good faith with any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the land or waters covered by the act; and (b) ensure that sites and areas of significance to native title holders are protected.I indicate that there is a body of law which says what good faith is. If Senator Harradine is concerned about cases going to the Federal Court, this will not be the only avenue through which those cases will be going to the court. Basically what we are trying to do is impose an obligation on people to act in the way that they should, knowing full well that if they do not then there is recourse to redress.22:23:002249Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I indicate that the Greens (WA) will be supporting the opposition's amendments RN20 and N20A.Amendments not agreed to..22:24:002249Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—That leaves us with our third best option—that is, to oppose the section. We did try to make it workable. We did try to make it relevant. We did try to allow relevant exemptions to be included in the legislation. Given that there was no agreement from the Senate, I would urge that the Senate opposes subdivision J. For the reasons I have given—clearly the people it would disadvantage unfairly, clearly the unknown implications, and clearly the case or potential for misuse—I urge that the Senate opposes the subdivision.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Watson)—The question is that schedule 1, item 9, subdivision J, as amended, stand as printed.Question resolved in the affirmative.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Senator Margetts, you will not be moving your amendment 17?22:25:002250Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—No. Amendment 17 was consequential on Greens-Democrats 84 to oppose the subdivision. Therefore, I will not be putting it.22:25:002250Harradine, Sen BrianSenator HARRADINE6H4TASIND00—Could I suggest, if Senator Bolkus is ready to do so, that we go back to the ILUAs and that he might move N46 and N47?22:26:002250Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I was going to suggest we do that. That is the only outstanding matter from the debate so far. I move:(N46) Schedule 1, page 6 (after line 10), after item 8, insert:8A At the end of section 15Add: (3) Notwithstanding subsection (1), if an indigenous land use agreement to which a State or Territory is a party is registered and makes provision in relation to the consequences of a past act validated under this Division, the provision has effect from the time at which the agreement is registered.(N47) Schedule 1, item 9, page 8 (after line 3), at the end of section 22B, add: (2) Notwithstanding subsection (1), if an indigenous land use agreement to which a State or Territory is a party is registered and makes provision in relation to the consequences of an intermediate period act validated under this Division, the provision has effect from the time at which the agreement is registered.They are amendments that I promised we would try to develop to ensure that the validation was separate from any ILUA process which goes to questions of the effects of the validation. The amendments that have been circulated in my name clearly distinguish one from the other in terms of time and effect. I commend them to the chamber.22:27:002250Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I indicate that the opposition has met the requirement to make sure that all bases are covered in moving amendments of this kind. We are satisfied that they now can achieve the purpose which the opposition seeks. However, we remain opposed to the purpose. We do not think, as a matter of policy, on balance, that it should be open to the agreements process to seek to vary the consequences of the validation regime. On that ground, we oppose those amendments.22:28:002250Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I support the amendments. As the minister has indicated, they are now in a form at least that do have regard to the other specific provisions of the act. One then can concentrate on the purposes of the amendments. I support the purpose of the amendments and therefore vote for them.Amendments agreed to.22:28:002250Bolkus, Sen NickSenator BOLKUSXE4SAALP00—There is another set of amendments that also need to be put with the previous set. They were actually complementary amendments which made the other amendments more acceptable to the Senate. The postponed amendments read:(N11) Schedule 1, item 9, paragraph 24BB(aa), after "other than" (wherever occurring), insert "the validation of".(N12) Schedule 1, item 9, page 22 (after line 31), after paragraph (e), insert: (ea) the consequences of any act with respect to which an agreement can be made (other than the validation of past acts or intermediate period acts);(N13) Schedule 1, item 9, paragraph 24CB(aa), after "other than" (wherever occurring), insert "the validation of".(N14) Schedule 1, item 9, page 26 (after line 16), after paragraph (e), insert: (ea) the consequences of any act with respect to which an agreement can be made (other than the validation of past acts or intermediate period acts);(N15) Schedule 1, item 9, paragraph 24DB(aa), after "other than" (wherever occurring), insert "the validation of".(N16) Schedule 1, item 9, page 35 (after line 23), after paragraph (e), insert: (ea) the consequences of any act with respect to which an agreement can be made (other than the validation of past acts or intermediate period acts);22:29:002251Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I ask the committee to have patience. I have mislaid my notes on that particular matter and my running sheet as well.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—These have previously been agreed to but then postponed and recommitted and postponed.22:29:002251Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I was just going to say that. They had almost been agreed to previously. These were the amendments to which the amendments that we just agreed to were attached. Senator Harradine was keen to ensure that the amendments that we almost agreed on earlier were going to be safe against any unintended consequences. I think we can go ahead and put it to a vote.Amendments agreed to.22:30:002251Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—Mr Temporary Chairman, I referred earlier to a problem which our advisers have detected with respect to ILUAs and some contradictory amendments both passed by the Senate that I think need some sorting out. I beg the indulgence of the Senate to seek the recommittal of that motion and to speak to it.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Are they amendments Nos 162 and 163 in relation to indigenous land use agreements?JX4Minchin, Sen NickSenator MINCHIN—That is correct. They are the Greens- Democrats amendment 162 and government amendments 21 and 22, which deal with the same subject but in different ways and cannot sit together, yet they have both been passed. We really have to make a choice between them. So I am seeking leave to recommit them and then speak to explain the problem to the Senate and then simply seek to have the Senate decide which amendments it prefers.22:31:002251Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I would like to intercede at this point to say I think it is interesting that every time the Greens win something, the govern ment wants it to be recommitted. This seems to be the case again. During the debate on these sections, I quite clearly heard the Senate querying the problems associated with government amendments 21 and 22. I heard more support for the Greens (WA) amendments 162 and 163. It would therefore make sense to clarify whether or not people did in fact want the government's amendments 21 and 22 if they were clearly saying that they thought that 162 and 163 were supportable. The government usually likes their amendments put first. I am happy for the government's amendments to be voted on first. If the Senate says that they are preferring the Greens-Democrats amendments, perhaps we would know that the vote on those amendments would stand.22:32:002251Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—With the leave of the Senate, I therefore again move:(21) Schedule 1, item 30, page 130 (line 3), omit "The", substitute "Subject to subsection (1A), the".(22) Schedule 1, item 30, page 130 (after line 34), after subsection (1), insert:Federal Court order not to remove details (1A) If: (a) the Registrar is or will be required to remove the details of an agreement from the Register in a case covered by paragraph (1)(a) or (b); and (b) the persons who, under the approved determination of native title mentioned in that paragraph, hold native title apply to the Federal Court for an order under this subsection; and (c) the Federal Court is satisfied that those persons accept the terms of the agreement, in accordance with the process by which they would authorise the making of such an agreement; the Federal Court may order the Registrar not to remove the details of the agreement from the Register. Note about Schedule 1, item 30: The heading to subsection 199C(2) (page 131, line 1) is altered by adding at the end "to remove details ".I think it would probably help if I explained what this is all about. The bill provides that agreements are to be removed from the register of ILUAs in certain circumstances. With regard to body corporate agreements, an agreement has to be removed if it was made by the body corporate and then there is a determination by the court that other persons are the native title holders in relation to the area. That would be unusual but, of course, still possible. With regard to area agreements, an agreement is to be removed if there is a determination of native title and the true native title holders did not authorise the agreement.It does not seem appropriate to the government that the true native title holders should be bound by an agreement entered into by people who the court decides are not native title holders. It was pointed out in the debate last year that this may be an inappropriate result in some circumstances, especially if those determined as the true native title holders are happy to be bound by the agreement. So we proposed amendments 21 and 22. They provide that the Federal Court can order that an agreement not be removed from the register where the new determined holders accept its terms. Those two amendments—21 and 22—were passed by the Senate.As has been pointed out, the Greens-Democrats amendment 162 covers the same issue. That amendment amends the bill but not the bill as amended by government amendments 21 and 22. It does different things from government amendments 21 and 22. The Greens-Democrats amendment 162 provides in effect that even where there is a determination of new native title holders the registrar is not required to automatically remove the agreement. The agreement is only required to be removed if the new determined holders convince the court that the agreement would not have been authorised had it been known that those persons only were the persons entitled to authorise the making of the agreement. It is our view that that is a very difficult condition to determine. But that amendment has also been passed by the Senate.Thus there are two inconsistent amendments made by the Senate. The government puts to the Senate that its amendments should be the ones that are made. The presumption should be that where it is clear an agreement has been made by the wrong people, that agreement should be removed by the registrar. It is only in exceptional cases, and where the court specifically orders, that that agreement should remain. The government does not agree that the presumption should be that where it is clear the agreement has been made by the wrong people that the agreement should continue to be on the register. That would be the effect of the Greens-Democrats amendment, and it can be removed only by an order of the court. We therefore put government amendments 21 and 22 as the preferred procedure for dealing with this particular issue.22:35:002252Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I think it is probably best to argue these as a package as they are obviously linked in the argument. As I mentioned before, the idea of amendments 162 and 163 is that the Federal Court cannot sign off on an indigenous land use agreement unless it is satisfied that there has been no duress.It seems that people do want the indigenous land use agreements to work. We believe that if this kind of provision is not there, there is no indication that the ILUAs will necessarily work. If you have parties that continue to be unhappy with the process, if they feel they have been coerced or there has been duress used, then this system is not going to work. The kinds of things that many people, not everybody, in the system are asking for may not come to fruition, so I think it would be counterproductive.If I heard Senator Minchin correctly, I believe he indicated the problems he had were more with amendment 162, and that he was prepared to accept amendment 163. If we find there is acceptance of the government's amendments 21 and 22, I would be suggesting that we only recommit 162 as the minister seemed to be saying, unless I am incorrect, that he has problems only with 162.22:36:002252Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—That is correct. We are just talking about the conflict between the government's amendments Nos 21 and 22 and the Greens-Democrats amendment No. 162. We have no objection to 163.22:37:002253Harradine, Sen BrianSenator HARRADINE6H4TASIND00—In regard to what Senator Margetts has said, I think that is correct. We are all very much in favour of amendment 163 and the provisions therein. I accept the technical point that was made by the government, and I will be supporting government amendments 21 and 22 and procedures to be followed for the recommittal of the Greens-Democrats amendment No. 162.22:37:002253Bolkus, Sen NickSenator BOLKUSXE4SAALP00—The opposition's concern was to ensure that Senator Margetts's amendment 163 is protected. That is happening and, on the basis of that, we are relaxed about government amendments 20 and 21 being accepted as an alternative to amendment 162. I did say at the outset of the debate that, though we would support 21 and 22 if required, our preference was for the Greens (WA) amendments. That was on the basis of the provisions of No. 163. I indicate also that we will be voting for the government amendments on the basis that amendment 163 is protected.Amendments agreed to.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—We will now move to Green's amendment No. 162.22:39:002253Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I will again move Greens and Democrats amendment No. 162. I move:(162) Schedule 1, item 30, page 130 (lines 3 to 30), omit subsection (1), substitute: (1) The Federal Court may order the Registrar to remove the details of an agreement under Subdivision B or C of Division 2C of Part 2 from the Register if an approved determination of native title is made in relation to some or all of the area covered by the agreement and the Court is satisfied, on application by the persons who, under the determination, hold native title in relation to the area , that the agreement would not have been authorised had it been known that those persons only were the persons entitled to authorise the making of the agreement. (1A) The Registrar must remove the details of an agreement from the Register if: (a) the agreement expires; or (b) all the parties advise the Registrar in writing that they wish to terminate the agreement; or (c) the Federal Court, under subsection (2), orders the details to be removed.Amendment not agreed to.22:39:002253Bolkus, Sen NickSenator BOLKUSXE4SAALP00—There was an inquiry earlier on to Senator Minchin in respect of government amendment 23, one that his advisers were trying to persuade our advisers was a meritorious amendment. I do not know if we finally resolved that amendment, but we are still waiting for Senator Minchin to provide an explanation to us.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—It was agreed to earlier, Senator Bolkus.XE4Bolkus, Sen NickSenator BOLKUS—Well, the Senate has obviously passed something that we do not know the impact of, but if we can get some follow-up information from the government overnight that will be very useful.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—We now turn to sheet 9, `Services to the public'.22:40:002253Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I got into full flight last time and found that there was a concern in the chamber that I was canvassing the right to negotiate. If you canvass services to the public, I think you will find yourself canvassing the right to negotiate. So I seek some guidance as to whether we should leave this part to the debate under `right to negotiate' or whether you are prepared to have it now.22:40:002253Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I do suggest that we deal with the amendments listed on the running sheet under this heading of `Services to the public'. These are discrete in the sense that they seek to establish a regime for future acts relating to services to the public and the way in which they and the procedural rights that attach are made valid. So we think that rather than now changing orders or changing running sheets we should deal with them. I think we can deal with them in the way presented to us and come to the right to negotiate in due course.22:41:002254Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I just wanted to indicate why the Democrat-Greens (WA) amendment is actually to oppose subdivision K. The overall purpose of this group of amendments is to restrict the scope of the subdivision so that it applies only to existing facilities, to improve heritage protection measures and to improve procedural rights. That is why we therefore want to oppose subdivision K as the opposite of that.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—The question is that schedule 1, item 9, subdivision K be agreed to.Question resolved in the affirmative.22:42:002254Bolkus, Sen NickSenator BOLKUSXE4SAALP00—Mr Chairman, at this stage we have two sets of amendments. We have dealt with Democrat-Greens (WA) amendment 84A. My running sheet says that if is 84A is not successful, then they have 85 to 93 to be considered.22:43:002254Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I move:(92) Schedule 1, item 9, page 67 (lines 2 to 12), omit subsection (7), substitute:(7) The native title holders have the same procedural rights as they would have in relation to the act on the assumption that they instead held ordinary title covering any land concerned or covering the land adjoining, or surrounding, any waters concerned.In the procedural section this removes the distinction between acts on non-exclusive leases and other tenures to ensure that native title holders' procedural rights are equated with those of ordinary title holders in all cases. It replaces section 24KF(7).10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Is it correct that 92 and 100 are the same, Senator Bolkus?22:45:002254Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I think that is so. In supporting Senator Woodley, can I say that what we are doing here is moving an amendment which was accepted by the Senate last December. With this amendment, subsection (7) of 24KA(7) is replaced by a subsection which reinstates the current position in the Native Title Act, which is in section 23(6), and removes the distinction created by section 24KA(7) between acts on non-exclusive tenures and other land. This will ensure that native title holders' procedural rights are equated with those of ordinary titleholders in all cases. As I say, this amendment was accepted last year and I support Senator Woodley moving it now.22:45:002254Harradine, Sen BrianSenator HARRADINE6H4TASIND00—It was supported by the Senate on the last occasion. I voted for it and I am supporting it again now.Amendment agreed to.22:46:002254Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I move:(93) Schedule 1, item 9, page 65 (line 3), omit "construction", substitute "reconstruction (but not so as to increase significantly the area of land used)".(94) Schedule 1, item 9, page 65 (line 11), omit "construction," substitute "reconstruction (but not so as to increase significantly the area of land used)".(95) Schedule 1, item 9, page 65 (lines 13 to 18), omit paragraph (c), substitute: (c) it does not prevent native title holders in relation to land or waters on which the thing is located or to be located from having reasonable access to the land or waters in the vicinity of the thing, except for reasons of health and safety; andWhat we seek to do here is to exclude `construction' from subsection 24KA(2)(b) and replace it with `reconstruction'. What we are doing by trying to give effect to this is to restore the position of native title holders as in the current act; that is, opening the way for other more beneficial future act provisions, such as the procedural rights of an ordinary titleholder, to apply regarding construction.We are concerned that construction as it now stands does allow for an enormous loophole. The amendment closes any possible legal loopholes as well arising from reconstruction by requiring that the area of land affected by the reconstruction cannot be significantly increased beyond that of the original area. This was deliberated upon by the Senate at the end of last year and was deliberated upon also with amendment 95, which is consequential to amendments 93 and 94. If construction is to be removed from the provision, then there is no need for a provision governing access during construction.Amendments agreed to.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Watson)—Senator Woodley, I presume you will not proceed with your amendments 85 and 86, will you?HX5WOODLEYSenator Woodley—I presume so, Mr Temporary Chairman.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Senator Bolkus, it is necessary for you to move RR101 on sheet 946.22:49:002255Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I move:(RR101) Schedule 1, item 9, page 67 (after line 27), at the end of section 24KA, add: (9) If there are registered claimants in relation to the land or waters concerned, they have the procedural rights referred to in subsection (7). (10) If there is no registered claimant in relation to the land or waters concerned, the representative body, in addition to any procedural right conferred on it by any other law, has a right to comment on the act before it is done.Amendment RR101 replaces R101. In the process of the evolution of amendments, we have been trying to come up with a proposition which will get majority support here. Amendment RR101 ensures that registered native title claimants receive the procedural rights afforded by subsection (7) to the ordinary titleholder.We are concerned that there was some opposition to R101 because it extended the procedural rights in subsection (7) to rep bodies. My understanding is that the government appears to acknowledge that there should be some role for rep bodies for native title holders who are not registered claimants or members of a registered native title body, and that preparedness extends to a right on the part of the rep body to comment on the act before it is to be done.For us at least, this provides unregistered native title holders with some opportunity to have their concerns expressed in relation to proposals, and goes a small way towards protecting their rights and interests. It is incrementally beneficial to the position already in the legislation. As a consequence, as I say, we have pared down our R101 to RR101. We hope that there is enough support for the committee to accept it.22:50:002255Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—While we do not have an objection to this as it is worded, we do object to the amendment—I think it is amendment 100—which has already been agreed that gave native title holders the rights of ordinary titleholders irrespective of the nature of the underlying title upon which the services to the public are installed or provided. We have said repeatedly that we believe equality of rights is vital so that, if the services are implemented on a pastoral lease, then the rights that should attach to the native title are the same rights as attached to the pastoral lessee and, if it is on freehold, then it is freehold title. We fundamentally disagree with the proposition that you have a hierarchy of procedural rights based on race on pastoral leases. We have objected to that but we do not have an objection to amendment RR101.Amendment agreed to.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Murphy)—Before we go on, we understand there are no amendments to low impact acts. We move on to freehold test and offshore.22:52:002255Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I move:(31) Schedule 1, item 9, page 71 (line 4), before "or otherwise", insert "or by surrender, cancellation or resumption".(32) Schedule 1, item 9, page 71 (lines 13 to 15), omit paragraph (c), substitute: (c) the compulsory acquisition extinguishes the whole or the part of the native title rights and interests; and(33) Schedule 1, item 9, page 71 (after line 30), after the note, insert:Note 2: This subsection only deals with the case where native title rights and interests are compulsorily acquired. It is also possible for native title rights and interests to be acquired voluntarily by means of an indigenous land use agree ment or an agreement covered by subsection (2A). In such cases, non-native title rights and interests could be acquired either compulsorily or by some other means (e.g. voluntarily).(34) Schedule 1, item 9, page 71 (after line 30), before subsection (3), insert:Extinguishment of native title by surrender in course of right to negotiate process (2A) If: (a) notice of a proposed compulsory acquisition of native title rights and interests is given in accordance with section 29 or with an equivalent alternative provision applicable under section 43 or 43A; and (b) an agreement arose out of negotiations in relation to the proposed compulsory acquisition of the native title rights and interests; and (c) the agreement includes a statement to the effect that an act consisting of the surrender of the whole or part of the native title rights and interests is intended to extinguish the whole or the part of the native title rights and interests; then: (d) the surrender extinguishes the whole or the part of the native title rights and interests; and (e) no native title holder who is entitled to any benefit provided under the agreement is entitled to any compensation for the act under this Act, other than compensation provided for in the agreement; and (f) any other native title holder is entitled to compensation for the act in accordance with Division 5.(35) Schedule 1, item 9, page 71 (lines 32 and 33), omit "other future act to which this Subdivision applies", substitute "future act to which this Subdivision applies that is not covered by subsection (2) or (2A)".(36) Schedule 1, item 9, page 74 (line 24), before "or otherwise", insert "or by surrender, cancellation or resumption".Government amendment 31 is to subsection 24MD(2), which sets out a process for the non-discriminatory compulsory acquisition of native title. The amendment is necessary in order to appropriately address state and territory laws and land management practices. The whole purpose of section 24MD is to ensure that native title is protected from discriminatory acquisitions and extinguishment. In essence, it provides the same protection to native title holders as freeholders receive. It provides the same protection as currently in the 1993 act but strengthened. To suggest that the bill allows massive acquisition and extinguishment of native title is wrong. Those who think otherwise, especially those with the responsibility to inform the public on this issue, should concentrate on what is actually in our bill. Subsection 24MD(2) ensures a non-discriminatory outcome by requiring that, when native title rights in an area are compulsorily acquired, any non-native title rights in relation to that area must also be acquired. However, there are a range of ways in which non-native title rights, such as freehold leases and licences, which are rights granted by governments, can in effect be acquired and therefore cease to exist. Particular rights granted by the Crown may be surrendered, cancelled or resumed. These have the same outcome as compulsory acquisition. Government amendment 31 therefore ensures that the surrender, cancellation or resumption of relevant non-native title rights is treated in the same way as the compulsory acquisition of other non-native title rights. Government amendment 36 makes a similar amendment to subsection 24NA(3) which deals with the non-discriminatory compulsory acquisition of native title rights to an offshore place. It is not appropriate in 24MD to address the fact that native title rights may also be surrendered by agreement. As I said, the whole point of the provision is to protect native title from discriminatory compulsory acquisition. The provision therefore gives to native title holders the same protection as freeholders. Native title holders may of course agree to surrender their native title under an ILUA or an agreement arising out of a right to negotiate process. That is made clear in the note to be added at the end of 24MD by our amendment 33.The note also goes on to point out that, because the focus of the provision is the protection of native title, it does not deal with the terms of any unrelated compulsory acqui sition, surrender, cancellation or resumption of non- native title rights. However, there will of course be circumstances when non-native title rights are compulsorily acquired but native title rights are not. For example, in some states and territories, Aboriginal living areas are excised from pastoral leases and given to indigenous peoples.Government amendment 32 clarifies that, where there has been a non-discriminatory compulsory acquisition of native title, the acquisition extinguishes the native title that was acquired. It has always been the government's belief that a non-discriminatory compulsory acquisition of native title does extinguish that title. This is not the reservation of Crown land for public purpose, which we agree does not extinguish; this is the acquisition of all the rights in the land by the government concerned. Government amendment 37 makes a similar amendment to subsection 24NA(3) to clarify that a non-discriminatory compulsory acquisition of native title to an offshore place extinguishes the native title acquired. Amendment 34 sets out the effect of an agreement to surrender native title that arises out of a right to negotiate process. If the agreement contains a statement to the effect that the surrender is intended to extinguish the native title, new subsection 24MD(2)(a) provides that the voluntary surrender of the native title as a result of the right to negotiate process extinguishes the native title. Compensation for native title holders who receive benefits under the agreement is as set out in the agreement. Any native title holders who do not receive benefits under the agreement are entitled to compensation determined in accordance with division 5 of the act. Government amendment 35 makes a minor consequential amendment to include a reference to new subsection 24MD(2)(a) in subsection 24MD(3).22:57:002257Bolkus, Sen NickSenator BOLKUSXE4SAALP00—The freehold test is an important part of the legislation. Under the Native Title Act, future acts are only permissible if they are non-discriminatory in the sense that the act applies in the same way to native title holders as it would to other ordinary title to the land. This was a key principle behind the Native Title Act. There are some exceptions to the rule under the Native Title Act but they are very limited, particularly very limited when compared to the government's proposed amendments which will not require the non-discrimination freehold test to be set aside for many major developments. The government does propose to leave the freehold test principle in some future acts. Those future acts will be valid if they are granted in a non-discriminatory way, just as one would for acts over freehold land owned by another. What we are concerned about here is that the government is seeking to make even further inroads and exceptions to the non-discrimination principle in the freehold test itself. We tried last December to exempt from the system those involved in the mining of opals and gems. Therefore, the right of veto for freeholders in some states would not have to apply to the benefit of native title holders in these areas. Another exemption which we also contested was that, where land was compulsorily acquired, the native title is extinguished at the date of the acquisition even though the land was never used. We were not successful in pursuing that particular point. We also had concerns about gold and tin mining acts as well. In December we sought to remove some of these exemptions and to return the freehold test as much as possible to the original Native Title Act position. As I say, we were not successful. We are not going to pursue amendments this time that we could not get up last time and for which there is no indication of support this time. We do have some concerns with respect to the government's amendments this time. In relation to paragraph 24MD(2)(b) relating to the onshore freehold test and 24NA relating to ex-offshore, these paragraphs of the bill were amended in December pursuant to amendments moved by Senator Harradine, amendments which were aimed at taking into account the criticisms that the state and territories could use discriminatory practices even for compulsory acquisitions.This requires that practices and procedures adopted in acquiring native title rights do not cause native title holders any greater disadvantage than is caused to the holders of non-native title rights and interests when their interests are compulsorily acquired. Unfortunately, the government did not accept this amendment in the House of Representatives. It now proposes amendment No. 31, which we see as an inadequate attempt to address the same problem. The government would allow compulsory acquisition of native title rights where the non-native title rights are compulsorily acquired, surrendered cancelled or resumed, and in those cases only the freehold tests might apply. Our concern is that the operation of the freehold test will be more limited and native title rights and interests would not be preserved in the way that they should.Once again, we will be supporting the Harradine amendments. We believe that they achieve the purpose of providing that state and territory governments cannot acquire land by agreement for non-native title holders but compulsorily acquire native title. The government amendments still allow for differential treatment and, to that extent, Harradine amendments Nos 18 and 21 are more acceptable to us.In respect of proposed subsection 24MD(2)(a), our amendment RR107 will extend procedural rights to the rep body involved as well as the registered native title claimants notified. Once again, we are involved in a very technical part of this debate, but we indicate at this particular stage our concern with the government excesses and our in-principle support for Senator Harradine's amendments.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Patterson)—Given that, Senator Bolkus, I will split the question from the chair and put the amendments separately.XE4Bolkus, Sen NickSenator BOLKUS—That is a good idea, Madam Temporary Chair. In respect to amendment No. 31, there may be an amendment from Senator Harradine—amendment No. 18.23:02:002258Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—In general explanation, the current act as noted in relation to subdivision H does not deal adequately with native title over places beyond the limits of a state or territory—that is, those areas not covered as onshore places. The only relevant provisions are those which allow a government to confirm ownership of natural resources by it and confirm public access to coastal waters. Those are in sections 212(1)(a) and 212(2)(c).Native title fishing and hunting rights are preserved by section 211. The need to deal with offshore resources which are or may be subject to native title should be addressed. The bill would allow them to be extinguished without any procedural fairness or regulated out of existence. There is a need to allow native title holders to be heard when decisions are made concerning the exploitation of resources and granting of fishing licences.If the right to negotiate is not to be provided—that is, the constructive approach—the status quo should remain and the indigenous land use agreements will provide the relevant mechanism. In any event, this subdivision should be omitted. It is internally inconsistent, it will apply only to land outside state or territories but it envisages the application of their compulsory acquisition laws, and it is grossly discriminatory. We strongly support the Greens-Democrats amendments which, in effect, oppose subdivision N, and we have an amendment to omit it and substitute paragraph 24MD(2)(c).10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—The question is that government amendment No. 31 be agreed to.Amendment No. 31 not agreed to.23:05:002258Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I move:(18) Schedule 1, item 9, page 71 (line 4), omit "(whether compulsorily or otherwise)", substitute "compulsorily".I will be very brief because Senator Bolkus has already given the supporting arguments. The amendment relates to 24MD, which is on the treatment of acts that pass the freehold test. My amendment seeks to delete from 24MD(2)(b) the words `(whether compulsorily or otherwise)'.I hope it would generally be agreed around the chamber that it would be racially discriminatory to allow compulsory acquisition of proven native title rights, not for public purpose but simply for the grant of a right of exclusive possession to a lessee who has voluntarily surrendered a non-exclusive tenure. If this upgrade of pastoral leases proposals were truly non-discriminatory, it would have to be non-discriminatory on its face and also non-discriminatory in its application.This would mean that it would be equally feasible for native title holders voluntarily to surrender their native title rights and successfully to request state governments compulsorily to acquire pastoral leases, and then issue the native title holders with rights of exclusive possession. Leaseholders attempting to upgrade could go along to a state government and say, `We want to upgrade. We do not want to go through all this hassle. You compulsorily acquire our leasehold rights and then we will buy it back and have it as a freehold.'My amendment says that compulsory acquisition of native title rights should be possible only on the same terms and conditions as the compulsory acquisition of all involuntary resumption of other property rights. Compulsory acquisition of native title rights should not complement a voluntary surrender of a pastoral lease. In other words, my amendment seeks to keep everybody honest. I assume that that is why, in December, the Senate unanimously endorsed my amendment. When I say `unanimously', of course that means the government.23:08:002259Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—We have indicated in the past to Senator Harradine that we do not really understand the purpose of this amendment, and we do not accept it. The fact is that native title can, of course, be acquired by agreement. If, in the circumstances you are talking about, the native title holders wanted to engage in some form of agriculture that required the surrender acquisition of the pastoral lease and the native title in order that a new agricultural lease could be issued, an agreement can be reached with the native title holders that does not involve the compulsory acquisition of their title, but it may involve the compulsory acquisition of the pastoral lease and then the agricultural lease is issued to the native title holders. That is contemplated. What is good for the goose is good for the gander.We are talking about ensuring that there is a non-discriminatory acquisition of all property interests in the area concerned. The fact is that non-native title rights and interests can also be acquired by means other than compulsion under the various state procedures. They all have a variety of procedures referring to surrender, acquisition and resumption—all those sorts of things—all by agreement, as is the case with native title, which can be acquired by agreement or, if necessary, compulsion. As I say, it may well be the case that there is agreement for the acquisition which is for the benefit of the native title holders having a new title issued.So we do not really understand this amendment. We think it is simply going to inhibit this in a way that does not really make any sense. That is not reflective of the fact that we are putting in place, quite clearly, a non-discriminatory regime as to the acquisition of interests—all interests have to be acquired—that gives some flexibility about that acquisition and takes account of the fact that all the states have a variety of regimes to allow the acquisition of non-native title rights and interests. As I say, this accords with and is mirrored by the arrangements put in place in the Native Title Act regarding the acquisition of native title rights and interests.Amendment agreed to.23:11:002259Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I move:(94) Schedule 1, item 9, page 70 (lines 3 to 9), omit subsection (2).(96) Schedule 1, item 9, page 73 (lines 4 to 18), omit subsection (6), substitute:(6) In the case of any future act to which this Subdivision applies, other than an act to which Subdivision P (which deals with the right to negotiate) applies, the native title holders have the same procedural rights as they would have in relation to the act on the assumption that they instead held ordinary title to any land concerned and to the land adjoining, or surrounding, any waters concerned. Amendment No. 94 removes the exclusion of opal and gem mining from the operation of the freehold test and omits section 24MB(2).10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Patterson)—Senator Woodley, just for clarification: you are now talking about amendments Nos 94 and 96. We are not doing 95, I assume.HX5Woodley, Sen JohnSenator WOODLEY—No, I am assuming that amendment No. 95 will come later. This is a blatantly discriminatory provision, included only because in some states holders of freehold have a veto over opal and gem mining. The freehold test demands that native title holders should have equivalent rights and that problems should be resolved by an ILUA. Democrat-Greens (WA) amendment No. 96 is consequential on amendments to subdivision P, the right to negotiate.Amendments not agreed to.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—The question is that government amendment No. 32, which has been moved by Senator Minchin, be agreed to.23:14:002260Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I really need some guidance from the chair.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—We are considering government amendment No. 32.HX5Woodley, Sen JohnSenator WOODLEY—But how do we deal with the Greens—10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—The procedure is that we put the government amendment, and on the outcome of that will depend the Democrat-Greens (WA) amendment.Amendment No. 32 agreed to.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Senator Woodley, I presume you now will not be moving your amendment 95.23:14:002260Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I am not sure, seeing it is in conflict with government amendment No. 32 and we passed it, that there is much point in that. Maybe the quickest thing to do is to move it. I move:(95) Schedule 1, item 9, page 71 (lines 13 to 15), omit paragraph (c), substitute: (c) the non-extinguishment principle applies to the acquisition, but nothing in this Act prevents any activity that is done in giving effect to the purpose of the acquisition from extinguishing native title rights and interests if such an extinguishment would occur under the common law; andAmendment not agreed to.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Now we are addressing amendments Nos 33 to 35 moved by Senator Minchin.Amendments Nos 33 to 35 agreed to.23:15:002260Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I move:(RR107) Schedule 1, item 9, page 73 (after line 33), at the end of section 24MD, add: (8) If there are registered claimants in relation to the land or waters concerned, they have the procedural rights referred to in subsection (6). (9) If there is no registered claimant in relation to the land or waters concerned, the representative body, in addition to any procedural right conferred it by any other law, has a right to comment on the act before it is done.(RR110) Schedule 1, item 9, page 76 (after line 26), at the end of section 24NA, add: (10) If there are registered claimants in relation to the land or waters concerned, they have the procedural rights referred to in subsection (8). (11) If there is no registered claimant in relation to the land or waters concerned, the representative body, in addition to any procedural right conferred it by any other law, has a right to comment on the act before it is done.These are the amendments I mentioned earlier. These amendments extend the same procedural rights in respect of both offshore and onshore freehold tests to a rep body. As I said, I talked to them earlier on. There is probably not much need for greater exposition now.23:16:002260Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—The same process as occurred last time will occur this time, I presume. Let me just explain Democrats-Greens (WA) amendment No. 97, which is in conflict with opposition amendments RR107 and RR110. Pro posed subsections 24MD(6) and 24MD(7) reflect the requirements of sections 23(6) and 23(7) of the current act. The amendment reinstates section 23(7) in full and fills a gap in the current provision which allows for notification of native title holders, et cetera, but does not ensure that they can make use of other procedural rights, such as take objection to the act.Amendments agreed to.Amendment (by Senator Woodley) not agreed to:(97) Schedule 1, item 9, page 73 (line 33), at the end of subsection (7), add:;and in addition: (e) placing notices, in the way determined in writing by the Commonwealth Minister for the purposes of this paragraph, on any land concerned, advising that the act is to take place; and (f) notifying the public in the determined way (see section 252) that the act is to take place.(8) The procedural rights referred to in subsection (6) apply to a person referred to in paragraph (7)(c) or (d) who is notified as mentioned in subsection (7).10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—We now move to amendment 36, which was moved by Senator Minchin.Amendment No. 36 not agreed to.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—We now move to Senator Harradine's amendment No. 21.23:18:002261Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Madam Temporary Chair, the Greens-Democrats oppose subdivision N. One reason why we originally asked whether opposing that subdivision and the amendments could be put together is that I thought it would be better to test the waters of the chamber on subdivision N. If that was not agreed to, then the chamber could deal with Senator Harradine's amendment. I know we were moving to that. I am not sure why we have skipped that.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—We can do it either way, Senator Margetts, but in the interests of harmony, the question is that schedule 1, item 9, subdivision N, stand as printed. Question resolved in the affirmative.23:19:002261Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I move:(21) Schedule 1, item 9, page 74 (line 24), omit "(whether compulsorily or otherwise)', substitute "compulsorily".I refer to my previous contribution in respect of amendment No. 18.Amendment agreed to.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—I am presuming, Senator Margetts, that you will not be proceeding with your amendments Nos 18 and 331 as they are consequential.DX5MARGETTSSenator Margetts—That is correct, Madam Temporary Chair.Amendment (by Senator Minchin) agreed to: Schedule 1, item 9, page 75 (lines 1 and 2), omit "nothing in this Act prevents the acquisition from extinguishing", substitute "the compulsory acquisition extinguishes".10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—We now move to statutory access rights, page 13.23:20:002261Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I move:(48) Schedule 1, item 9, page 120 (after line 5), at the end of subsection (1), add:Note: The fact that a person cannot enforce native title rights and interests does not mean that the person is not entitled to rights conferred by subsection 44B(1).(49) Schedule 1, item 9, page 120 (line 7), after "operation", insert "or enforcement".(50) Schedule 1, item 9, page 120 (lines 9 and 10), omit the note, substitute:Note: The primary production provisions in Subdivision G and the "right to negotiate" provisions in Subdivision P are examples of provisions whose operation or enforcement are not intended to be affected by subsection (1).I remind the committee that statutory access rights are, from our point of view, an initiative by the government to ensure confirmation of existing access on pastoral leases, which we think is an important initiative. It was subject to amendment last time round so we are trying here to address some of the confusion about the effect of section 44C in the statutory access rights regime.Section 44C arises where some people are claiming native title to a pastoral lease and have statutory access rights under the bill. It provides that, in those circumstances, other people should not be able to enforce any general common law rights, in particular access rights, outside the Federal Court process which is taking place. If those other people want to enforce any access rights, they need to make a claim and pass the test for statutory rights, otherwise the pastoralist would be subject to double or triple jeopardy, being required to mediate with, and provide access to, registered native title claimants who are in the Federal Court and having to deal at the same time with other people asserting their rights in other courts.Government amendment 48 inserts a note to 44C(1). The note explains that the fact that one person or one group enjoys statutory access rights does not mean that other persons and other groups may not also be entitled to exercise statutory access rights. A number of people—indeed, a number of groups—may meet the test for statutory access rights and, if so, they are all entitled to exercise those rights. It was never the government's intention that, once one person has statutory access rights, no other person could also have such rights. There is nothing in the wording of 44C(1) to suggest that that is the case, but we do want to put the matter beyond doubt by inserting a note to that effect.Government amendments 49 and 50 make it clear that the provisions of the Native Title Act, such as the right to negotiate provisions and procedural rights for other future acts, are still enforceable by the claimants even though they cannot enforce other possible native title rights while statutory access rights are in place, remembering that they are interim rights pending a determination. It was never the government's intention that, while a person enjoys statutory access rights, the act itself would cease to operate or be enforceable. Subsection 44C(2) and the existing note to that subsection make it clear that 44C(1) does not affect the operation of the act. For example, a registered native title claimant who does not have access rights may nonethe less be a native title party for the purpose of any right to negotiate on the land.Similarly, the primary production provisions in the bill would continue to protect native title holders and give them, in certain cases, procedural rights even when there is a person who also enjoys statutory access rights. Government amendment 50 makes it clear that this is the case by inserting examples to that effect. The amendments ensure that the act continues to protect the native title rights of those who hold statutory access rights, and those who hold native title rights but not statutory access rights.23:24:002262Bolkus, Sen NickSenator BOLKUSXE4SAALP00—This is quite a critical and symbolic part of the government's scheme. We are talking about a scheme where, once a native title claim over all or part of an area covered by a non-exclusive agricultural or pastoral lease is registered, and if one or more of the native title claimants regularly had physical access to that area—underline physical—for the purpose of carrying out traditional activities as at 23 December 1996, the bill provides for a conditional statutory right of access to those areas while the claim is in progress. The rights of the leaseholder prevail over the statutory access rights and initially, while the statutory right of access applies to any part of the lease, no person can enforce any native title rights or interests in relation to the whole of the land covered by the lease.As well as those restrictions, there is another more curious one. The statutory access right to pastoral leases only applies when native title holders have not previously been excluded from entry. This is a somewhat absurd provision in that it will be unnecessary for claimants who already have access, and it is unhelpful for those who do not, particularly in cases where Aboriginal people have wrongfully been prevented from entering traditional country on a pastoral run. In those circumstances, we have here a government actually rewarding unlawful acts of pastoralists who excluded them.Once again, we find here a case where the Attorney-General has misled again. The government stated through the Attorney-General on 4 September last year:Access for registered native title claimants to pastoral leases will be guaranteed—This, however, as we found out, is restrictively qualified:. . . provided that they regularly had physical access at the date of the Wik decision.We should not underestimate the importance of these provisions. This is one provision that has been described by the Kimberley Land Council as `one of the cruelest hoaxes in the amendment bill'. The National Indigenous Working Group, which has been asked to suffer lots in the process leading up to this bill and since, comments in its submission to the Joint Parliamentary Committee on Native Title:The provision is of very limited benefit, is likely to be difficult to enforce and precludes the exercise of common law rights of access. Its benefit to indigenous people at all, which is doubtful, if it is of benefit, then the benefit is likely to be entirely marginal.We also have here a registration test which must be passed before Aboriginal people can claim a conditional statutory access right, and that is an onerous one. Failure of native title holders to pass this test will preclude them from gaining any statutory access rights. There needs to be physical access as at 23 December 1996.Many Aboriginal people have access to pastoral lands and do have good relationships with pastoral leaseholders. But let us not forget that throughout our history many Aboriginal people were forcibly removed from their lands either as part of government policy or, in some other circumstances, by pastoralists. That denial will deny them access here. If the native title claimants did not enjoy or were refused regular physical access to the area up until 23 December 1996, the statutory access right is not available to them. The regular physical access criteria does not appear to have any basis in the common law concept of native title. I have to signal at this particular stage that what constitutes regular physical access is not easily answered and it will be pursued in courts.We also have here a suspension of native title rights for all claimants, even in the circumstances where one individual claimant is entitled to a statutory access right under this subdivision. I must indicate that this is the cruel hoax referred to by the Kimberley Land Council. There is no just basis for the suspension of native title rights in these circumstances, nor is there any basis for not providing for compensation for the suspension of the native title rights.There is also some irony in the fact that the conditional statutory right of access will apply only if a native title claim is lodged. What the government is doing is what pastoralists would not want—people living in co-existence situations now have to lodge a claim. We say it is better to do it by agreement; we say there are problems with the government's provisions. We will be moving amendments. For instance, amendment 183 deletes section 44C, which removes the suspension of common law native title rights of interim statutory access rights. Our amendment N30 is worth reading at this stage. We want to insert in the government's provision a subclause (3)(A) which, for the purposes of one being entitled to statutory access, will read:(3A) For the purposes of paragraph (3)(a), physical access to land is deemed to have been regular up to 23 December 1996 if the person, being a member of the native title claim group, had not had regular physical access to the land prior to 23 December 1996 by reason of an act of government or by reason of the person having been denied physical access to the land by the lessee or a person acting on behalf of the lessee.This is an important amendment for us. It tries to redress in part some of the inequities of the government's proposal in this particular division.23:30:002263Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I would like to give a general explanation of what this section is all about, and then to explain the Greens (WA)-Democrat amendments. I will do that all in one go in the hope that it may speed up the process. We are dealing with subdivision Q of the government's bill. It provides certain persons with access to land covered by non-exclusive agricultural and pastoral leases for traditional purposes. The current act does not deal with this issue. However, this bill provides so little that it is virtually worthless to people with traditional connections to particular land. In that sense, I support what Senator Bolkus said. The concept itself is sound and was recognised by various inquiries, including the ALRC in its customary law report before the decision in Mabo No. 2.I will now give a brief explanation of each proposed amendment. Amendment No. 147 removes the restriction to claim land, access on available Crown land and other land not subject to exclusive possession interest—that is section 44A(2). Greens (WA)-Democrat amendments 148 and 150 remove the significance of the date 23 December 1996 in assessing previous access and need for regular access and provide right of access to any person entitled or obliged under law and custom if such a person alive at the date of commencement had had such access—section 44A(3).Greens (WA) amendment No. 149 removes the requirement that a person entitled to access rights must have lodged a claim and removes unreasonable restrictions on the exercise of access rights—that is, they have to be exercised in the same manner and to the same extent as previous access. It replaces a provision based on access rights specified in section 48 of the South Australian Pastoral Land Management and Conservation Act 1989. Among other things, it does not allow camping within one kilometre of any house or within 500 metres of a dam or other constructed stock watering point not being a site of significance—section 44B. Greens (WA)-Democrat amendment No. 151 removes the suspension of common law native title rights if interim statutory access rights are pursued.23:33:002264Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—On this issue Senator Woodley and I are sharing the same notes so I cannot improve on what he has just said.23:34:002264Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I am opposed to government amendments Nos 48 to 50 for the same reasons that have been outlined in the chamber. The opposition amendment N30 is in precisely the same terms as my amendment 55. I would be happy for the opposition to take that amendment forward if it so chooses.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Patterson)—We will deal with government amendments 48 to 50 first.6H4Harradine, Sen BrianSenator HARRADINE—The reason for our proposing the amendment has the same basis as my reason for opposing the government amendments.Amendments not agreed to.23:35:002264Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I foreshadow that I will be moving the following amendment:(N30) Schedule 1, item 9, page 118 (after line 17), after subsection (3), insert: (3A) For the purposes of paragraph (3)(a), physical access to land is deemed to have been regular up to 23 December 1996 if the person, being a member of the native title claim group, had not had regular physical access to the land prior to 23 December 1996 by reason of an act of government or by reason of the person having been denied physical access to the land by the lessee or a person acting on behalf of the lessee.23:35:002264Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I wonder whether Senator Bolkus would be in favour of adding four words at the end of his amendment. I wonder whether it might be limited to actions of government, a pastoral lessee or someone acting on behalf of the lessee. Is there any possibility of broadening that to add `or any other person'? Talking about access rights, when I look back on my notes from 1997 I find that the questions I asked Senator Minchin were far from adequately addressed. They included the whole issue of what is access, what is regular access, how do people prove it, how do other people attempt to disprove it, and the situation where somebody has traditional access which may mean they visit a place only once in their entire life, and that is the meaning for them of the traditional access. It might be a particular place for death ceremonies, coming of age ceremonies or one of those places which have specific significance for only one thing. There were many problems which were poorly addressed by the government. Considering all of those issues—Senator Bolkus has argued quite well on a number of issues in relation to access and how ridiculous the government's proposal is—I wonder whether we can add at the end of amendment No. N30 `or any other person'.23:37:002265Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I do not have any problem with that, Senator Margetts. Obviously, I will be guided by other members of the committee as well, but that essentially brings it into line with similar provisions that we have applied elsewhere. So the words `or any other person' after `lessee' would be appropriate.23:37:002265Harradine, Sen BrianSenator HARRADINE6H4TASIND00—Seeing that the amendment that is before the chair is similar to my amendment, I would agree to that suggestion; it is similar to the one that was tried on the threshold test.23:38:002265Bolkus, Sen NickSenator BOLKUSXE4SAALP00—by leave—I move the following amended amendment:(N30) Schedule 1, item 9, page 118 (after line 17), after subsection (3), insert: (3A) For the purposes of paragraph (3)(a), physical access to land is deemed to have been regular up to 23 December 1996 if the person, being a member of the native title claim group, had not had regular physical access to the land prior to 23 December 1996 by reason of an act of government or by reason of the person having been denied physical access to the land by the lessee or a person acting on behalf of the lessee or any other person.Amendment, as amended, agreed to.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Patterson)—We now move to Democrat-Greens amendment 148.23:39:002265Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I move:(148) Schedule 1, item 9, page 118 (lines 7 to 17), omit subsection (3), substitute: (3) There must be a person who, at the commencement of this section, or at a time during his or her lifetime, had physical access to the whole or a part of a traditional access area for the purpose of carrying on one or more traditional activities (see subsection (4)) of the person. (3A) This Subdivision applies to: (a) that person; and (b) any other person holding rights and obligations under traditional law and custom in relation to that traditional access area or that part of it; and(c) a person who is a descendant of a person referred to in paragraph (a) or (b) and who is recognised by traditional law and custom as being entitled or obliged to carry on one or more traditional activities on that traditional access area or that part of it.This amendment removes the significance of the date, 23 December 1996, as Senator Woodley has suggested, in assessing previous access and need for regular access, and provides rights of access to any person entitled or obliged under law and custom, if such a person who had such access is alive at the date of commencement. So it substitutes section 44(3) and (3A). It is arguing against no access rights unless there is a physical connection test. We think that is patently unfair and unjust.Amendment not agreed to.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—We will now move to Democrat-Greens amendments 147, 149 and 150.23:39:002265Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I move:(147) Schedule 1, item 9, page 117 (line 26) to page 118 (line 6), omit subsection (2), substitute: (2) There must be an area (a traditional access area ) of land or waters that, at the commencement of this section, was not subject to: (a) a grant of freehold title other than to the Crown, or to a statutory body of the Crown, in any capacity; or (b) a residential lease, commercial lease, exclusive agricultural lease or any other form of lease (except a pastoral lease or mining lease) conferring a right of exclusive possession over the land or waters concerned.(149) Schedule 1, item 9, page 118 (line 27) to page 119 (line 4), omit subsection (1), substitute: (1) At all times while this Subdivision applies, a person referred to in subsection 44A(3) has a right to enter, travel across or stay on the traditional access area for the purpose of following traditional activities of Aboriginal peoples or Torres Strait Islanders. (1A) However, subsection (1) does not permit a person included in the native title claim group to camp: (a) within a radius of one kilometre of any house in the traditional access area; or (b) within a radius of 500 metres of a dam, other constructed stock watering point (not being a site of significance) or a shed or outbuilding used for pastoral purposes.(150) Schedule 1, item 9, page 119 (line 17), omit "the person included in the native title claim group", substitute "a person referred to in subsection 44A(3)".Amendment 150 is associated with amendment 148 that we have dealt with previously; amendment 147 removes the restriction to claim land, access available on Crown land and other land not subject to exclusive possession interest. I commend them to the committee.Amendments not agreed to.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—The question is that schedule 1, item 9, section 44C stand as printed.23:40:002266Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—The government has popped this back in, but in 1997 this section was opposed, and I do not see that any argument has been given to the committee to change the way the committee votes on this because it is a very problematical section. I urge the committee to vote in the same way as it did last year.Question resolved in the negative.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—We now move to compensation, which is No. 14, the revised version.23:42:002266Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—The government has a few amendments in this section. They are amendments 51 to 53, which I now move:Compensation(51) Schedule 2, item 102, page 223 (after line 9), after paragraph (a), insert: (aa) to hear and determine applications under subsection 50(2) of that Act for determinations of compensation, where the amount of the compensation to which the applicant claims to be entitled is less than: (i) $100,000; or (ii) such other amount as is prescribed instead for the purposes of this paragraph.(52) Schedule 1, page 126 (after line 2), after item 13, insert:13A Subsection 50(1)Omit "section", substitute "Division".Note: The heading to subsection 50(1) is altered by omitting "Section " and substituting "Division ".(53) Schedule 1, page 126 (before line 3), before item 14, insert:13B At the end of subsection 50(1)Add:Note: Such compensation is generally for acts that are validated or valid. Native title holders would ordinarily be entitled to compensation or damages for invalid acts under the general law. The Federal Court may be able to award such compensation or damages in proceedings in relation to the invalidity of the act: see subsection 213(2).Amendment 51 amends the Federal Court Act to enable the Federal Court rules to provide for judicial registrars of the Federal Court to hear and determine applications for compensation made under the act when the amount claimed is less than $100,000 or an amount set by regulation.The amendment recognises that there should be a speedier and less expensive mechanism for determining compensation claims for relatively small amounts. We debated this matter at some length last year. This would appear to have been the policy behind the amendment moved by the opposition and made by the Senate last year to establish a small claims compensation scheme. While we had problems with that amendment, we do not have a problem with the policy objective.The amendment agreed to by the Senate was, and continues to be, unacceptable to the government because it requires the tribunal to make determinations of native title and compensation, which is clearly a judicial function and, based on Brandy, cannot be performed by the NNTT. Our amendment does not suffer from the Brandy problem; rather, the amendment complies with the requirement set out by the majority of the court in 1991 in Harris v. Caladine for the delegation by a court of judicial powers to judicial registrars.Government amendment 52 makes a minor correction to subsection 50(1) to reflect the fact that compensation is determined in accordance with division 5 of part 2 and not just in accordance with section 50. Government 53 inserts a note at the end of subsection 50(1) which explains that compensation under the NTA is generally for valid or validated acts and that compensation of damages for invalid acts is ordinarily determined under the general law. The Federal Court may have jurisdiction to hear and determine such matters where it is hearing a claim for something which is invalid because of the act under subsection 213(2).23:46:002267Bolkus, Sen NickSenator BOLKUSXE4SAALP00—This is an area where the opposition and other parties do have some major concerns with the government's approach. Because the government's approach to its 10-point plan has been so one sided we think it is important that the compensation provisions do assume greater importance.We have discussed just terms throughout the context of this ongoing debate. We dealt with them in division 2B relating to the legislative extinguishment of native title. There is universal concern amongst the lawyers who appeared before the Senate Legal and Constitutional Affairs Legislation Committee inquiry into the constitutionality of this bill that just terms provisions of the constitution were in one way or another not being met. Some of those concerns have been taken up by amendments from non-government senators.In respect of compensation, let us put it very clearly on the record that our position is that the parliament must express to the courts in a very unambiguous fashion that the compensation provisions of the Native Title Act are intended to be genuine. We are also concerned that though through this bill the government consistently and continually provides up front certainty of validation for non-indigenous land interests, it leaves native title holders merely with a right to recover compensation with no real attempt made to ensure it is timely and appropriate. Compensation on just terms must be the general overarching principle under this legislation. It should cover not only valid acts but also invalid acts and impairment as well as extinguishment.The small claims compensation provision which the government in part is adopting is, as far as it goes, acceptable to us, but we do want to amend it. Opposition amendment RN32 is designed to provide greater clarity to the compensation process where an application has been referred to a judicial registrar. As such it builds on the government's amendment 51 which provides for the Federal Court to delegate compensation claims under $100,000 to a judicial registrar.We have tried to achieve what we regard as an important policy objective—that is, to prevent the entitlement of compensation from being a convenient fiction for the government and a hoax on native title holders. The damage has been done. What we need to do is ensure that compensation claims are a viable proposition for native title holders. As such our amendment clarifies the law such that the Federal Court may make directions to ensure that a claim is determined as cheaply, formally and expeditiously as possible and that the legal costs of recovering compensation is not disproportionate to the amount being claimed. We do have non-exhaustive directions which the Federal Court may choose to make in pursuit of these objectives.The government has moved to a proposal for referral to judicial registrars of compensation claims under $100,000 because I think it recognises the validity of the policy arguments which we put in relation to small claims last December. What we are concerned about is that, through our amendment RN32, a vital element of the scheme for referring matters to the registrar is maintained and that this parliament demonstrates its clear intention that when a decision is made in terms of referral the costs and complexity of a small compensation claim must be contained and must not be thwarted by excessive legal manoeuvring. For the government to be totally consistent with its policy it will contribute to the costs of effective justice. I think there is some chance that they might support this particular amendment.We support government amendment 52. We support Democrats-Green (WA) amendment 152. We will pursue the debate in respect of 160. Our concern also is that compensation be paid for invalid as well as valid acts. Our amendment 31, which is one of the three elements passed by the Senate last time, will ensure that the position of the Senate in respect of valid and invalid acts is retained. Strangely enough, this amendment was agreed to in the House of Representatives last year, but the government is now stepping back from it.We also have another amendment which was also another strain of the compensation provisions that went through and was accepted by the Senate last year. One is in respect of just terms for impairment as well as extinguishment. We will move that again this time and anticipate that the government, which spoke in support of it and agreed to it in the House of Representatives on 6 December 1997, will once again change its mind and support it now.There needs to be some equity in this process. This is one of the last chances for the parliament to ensure not just equity but also protection against unconstitutionality. The three strains of our amendments, amendments which were accepted last year, need to be supported tonight.23:51:002268Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—The government does not have a problem with RN32 but opposes R188 and N31. We think there is a problem with insisting on just terms compensation when you are not talking about extinguishment. Just terms compensation is the concept applied for acquisition of property not impairment. The procedural rights for compensation relating to impairment are equated with that pertaining to freeholders. It is appropriate and sensible where there is an acquisition of property—that is, the acquisition of the native title, which is obviously much greater than impairment—that just terms compensation be paid but not where there is impairment. The relevant test is equivalent freeholders' rights. So we do have a problem with that amendment.We think N31 is not at all necessary. The whole act is about ensuring that where things are validly done, the Native Title Act itself should provide for compensation at just terms where that involves an acquisition. If they are invalid acts, they are outside the parameters of the Native Title Act. That is the whole point. To the extent that an invalid act which, by definition, allows itself to fall outside the Native Title Act, then any effect on native title should be addressed under the general law.So we do think there is an important distinction to draw when you are dealing with the Native Title Act and what it requires of governments in paying compensation. This is a fairly important issue in that sense because of the impact of the native title and the statutory obligation as it imposes on people. It is about the effect of saying: if the act allows you to do something that is valid, then you have this obligation under the Native Title Act. Where it is invalid and it is outside the auspices of the act, then the recourse in terms of damage obviously must rest with the general law.23:54:002268Bolkus, Sen NickSenator BOLKUSXE4SAALP00—There are a couple of points in response there. Impairment is a relevant consideration. Impairment denotes a negative impact. We should keep in mind in this debate that when we talk about compensateable property under the Constitution we are talking about more than just freehold land; we are talking about rights; we are talking about rights determined in cases like Georgiardis v. Newcrest. An asset can be an asset without being a real property asset. An impairment of that asset, a detrimental impact on that asset, is something which is compensatable and something that needs to be taken into account here.The other point to make is in respect of invalid acts. Senator Minchin, you have exposed the fraud that has been perpetrated on Aboriginal people here. You are wanting us to believe that your clause note is suffi cient to cover compensation in the case of invalid acts, although you have argued against compensation in those circumstances. We have problems with your clause note. It is vague in language. It makes reference to native title holders who `ordinarily may be entitled to compensation' and states that the Federal Court may be able to be award compensation through a general `vesting of jurisdiction'.We say that to make this act defensible you really need to be more explicit. Your clause note is not explicit. The amendment that was passed in the Senate last year was explicit. It is one that I believe the government has given us absolutely no reason to withdraw from. We are talking about protecting the constitutionality here, and disregard for those considerations is something that must be of concern to people.Going back to this particular point, though your clause note does recognise scope for compensation in respect of invalidity, we say that the language is such that it is insufficient. We also say that there has been no argument given, for instance, to make us withdraw from the protections afforded to native title interests during the last debate.23:56:002269Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I think I should briefly speak to the general principle that we are debating. We will be supporting the opposition amendment. The whole issue of compensation under subsection 51(3) is not necessarily just terms compensation. That provision applies if the act is not a compulsory acquisition and the similar compensable interest test is satisfied. That test is satisfied if compensation is payable under any law for the act on the assumption that the native title holders instead held ordinary title.The assumption is that for anything short of compulsory acquisition, native title holders should do no better than ordinary titleholders. If ordinary titleholders are provided with just terms compensation, it may not follow that compensation assessed on the same principles will be just terms compensation for native title holders. Similarly, when even for ordinary holders the compensation is less than just terms, equivalent compensation for native title holders may be much less than just terms compensation.23:58:002269Bolkus, Sen NickSenator BOLKUSXE4SAALP00—At this stage I can clarify one or two points I have made. I did make the assertion that there were three elements of the compensation package that were accepted by the Senate last time. One is just terms for impairment as well as extinguishment. Another was compensation for invalid as well as valid acts. I believe the third one was the small claims process. I will seek further advice on that. Those two provisions reflected in opposition N31 in respect of the invalid as well as valid acts and opposition R188 for impairment as well as extinguishment I believe were carried last time. As I say, RN32 reflects a process for flexible compensation provision.23:59:002269Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I thank Senator Bolkus. I understand that there is no opposition in any event to government amendments 51 to 53. On the running sheet, in the government amendments column directly beneath (51) to (53) it says: `[(52) and (53) above insert items 13A and 13B]'. Could somebody enlighten me as to what that means?Wednesday, 8 April 199812:00:002269Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I am advised that amendments 52 and 53 insert items 13A and 13B into the bill.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Murphy)—Which matches up with opposition amendments R188 and N31. So it is correct that we are all trying to achieve the same thing, Senator Bolkus?XE4BOLKUSSenator Bolkus—No. My running sheet says 156 and 157.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—It has just been changed.Amendments agreed to.Amendment (by Senator Bolkus) agreed to:(RN32) Schedule 2, item 102, page 223 (after line 10), after subsection 18AB(2A), insert:Compensation (2B) Where a compensation claim is referred to a Judicial Registrar: (a) the Court may give such directions as it considers appropriate, and for the purpose of ensuring that, so far as is reasonably practicable: (i) the claim is determined as expeditiously and cheaply as possible and without unnecessary formality; and (ii) the likely cost to the claimant of maintaining a reasonable claim is not disproportionate to the benefit claimed; and (b) the directions which the Court may give may include, but are not limited to, orders about: (i) the principles and procedures to be adapted to the circumstances of the case; (ii) providing for referral to mediation; and (iii) ensuring that the issues in dispute are identified as soon as possible and that the procedures required and evidence to be called by any party are limited to what is necessary to resolve such issues; and (iv) limiting the liability of the claimant to an adverse costs order; and (v) directing that the claimant's costs, or any part thereof, be paid by another party in any event or in particular circumstances.00:02:002270Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I would like to say that Democrat-Greens amendment 156 is actually incorporated in opposition amendments R188 and N31. We have got one little extra section so I cannot think we would be in opposition to R188 and N31 because they incorporate our amendment 156.Amendments (by Senator Bolkus) agreed to:(R188) Schedule 1, page 126 (after line 2), after item 13, insert:13A Subsection 51(1) Omit "Subject to subsection (3), the", substitute "The".(N31) Schedule 1, page 126 (after line 2), after item 13A, insert:13B After subsection 51(1) Insert: (1A) To avoid doubt, the entitlement to compensation referred to in subsection (1) arises whether the loss, diminution, impairment or other effect of the act on native title rights and interests occurs as a result of a valid act or an invalid act.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—We now move to Democrats-Green amendments 152 to 155.00:03:002270Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I move:(152) Schedule 1, item 10, page 122 (after line 3), after paragraph (b), insert: and (ba) the activity is validly undertaken: (i) in accordance with the terms of the lease, licence, permit or authority; and (ii) in accordance with any conditions applicable at the time the activity was undertaken; and (iii) in accordance with any requirements or conditions applicable under this Act, any other Act and any law of the State or Territory concerned;(153) Schedule 1, item 10, page 122 (line 12), after "compensation", insert "from the person doing the activity".(154) Schedule 1, item 10, page 122 (line 14), after paragraph (e), insert: ;and (f) native title holders are entitled to compensation under this Act for the doing of any such activity payable by the Government party responsible for the grant, issue or creation of the lease, licence, permit or authority.(155) Schedule 1, item 13, page 126 (line 2), omit "2B,".Democrats-Green (WA) amendments 152 and 154 refer to section 44H and ensure that any valid activity authorised under the general law prevails over native title. The section in the bill is loosely drafted and requires tightening so that it will not overreach its purpose and that is the purpose of our amendments. Amendment 153 ensures compensation available to native title holders is for activity under a non-exclusive pastoral or agricultural lease which may affect native title but ensures the owner of the lease is not liable to pay the compensation. Greens (WA)-Democrats amendment 155 is a minor consequential amendment.00:03:002270Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I seek clarification. Amendment 156 is covered by an amalgam of opposition R188 and N31 as well as government amendment 52, so it is a superfluous one to proceed with—10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Amendment 156 has been withdrawn. We are now actually dealing with 152 to 155.XE4Bolkus, Sen NickSenator BOLKUS—Amendment 152 is identical to an opposition amendment which was successfully passed in the Senate last time. It amends section 44H so that grantees avoid compensation liability for activities authorised by their grant only when they stay within their legal entitlements. We see this as a matter of basic fairness and common sense. Landowners should not get immunity from liability for compensation under the Native Title Act if they exceed the terms of their grant and carry out illegal activities on native title land. The amendment will confine the immunity to situations where lessees or licensees comply with the terms of their particular lease, license, permit or authority. On that basis, we support that. What was the other amendment?10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—It is 152 to 155.XE4Bolkus, Sen NickSenator BOLKUS—We do support 152 for those reasons. From my understanding 153 and 154 are in many ways complementary to 152, so there is good reason to support 152.00:05:002271Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I am advised that the intent of 152 is picked up by the government in amendments we have moved under Miscellaneous. In terms of the ordering of these amendments, it is in our view more properly dealt with under Miscellaneous. It is not in itself a compensation issue, so I would suggest that 152 is considered when we come to Miscellaneous and we look at the government amendments which deal with that.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—You might clarify whether it is just 152 or is it 152 to 155?JX4Minchin, Sen NickSenator MINCHIN—I am advised that it is only 152. Amendments 153 and 154 are about compensation, but 155 is consequential upon the removal of the confirmation regime and it is therefore of no effect because there is a confirmation regime in the bill. I would suggest it should be withdrawn.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—We have advice from you that 152 is dealt with by way of miscellaneous amendments, so we may postpone 152 until we get clarification suitable to the Democrats.00:07:002271Bolkus, Sen NickSenator BOLKUSXE4SAALP00—No. 153 exacts compensation from the person doing the activity. Our principle has been to exact it from governments, so we cannot support 153. You say that 155 has a different effect. I think 154 is actually covered by an amalgam of government 52 and our 188 and 31.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—On the basis of 152 having been postponed, the question is that 153 and 154 be agreed to.Amendments Nos 153 and 154 not agreed to.Amendment No. 155—by leave—withdrawn.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—The question is that schedule 1, items 19, 20 and 22, stand as printed.Question resolved in the affirmative.00:09:002271Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I move:(160) Schedule 1, page 128 (after line 13), after item 26B, insert:26C After section 53Insert:53A Potentially non-viable claims for compensation (1) If a claimant lodges a claim for compensation in respect of an act in the Federal Court, the claimant may:(a) place before the Court such material as he or she thinks fit for the purpose of establishing to the requisite degree of satisfaction that, unless alternative procedures are directed, it would not be reasonable for the claimant to pursue the claim, given the likely amount of compensation available; and (b) seek from the Court an order that the matter be referred to the Tribunal for determination in accordance with such directions as the Court may think appropriate; and (c) seek such directions as the claimant considers appropriate. (2) The Court must make the order sought if it is satisfied that: (a) there is available to the applicant prima facie evidence of the existence of the native title rights and interests in relation to which compensation is sought; and (b) there is prima facie evidence that the applicant or at least some of the native title group have a connection by their traditional laws and customs with the land or waters in question; and (c) there is not unequivocal evidence that all of those native title rights and interests have been extinguished; and (d) either: (i) the likely amount of the compensation is not expected to exceed the likely cost of maintaining and prosecuting the claim in the Court by more than 50%; or (ii) the likely amount of that compensation available to the native title group is unlikely to exceed $50,000 (or a greater prescribed amount); and (e) the claim can be dealt with more efficiently, cost effectively and expeditiously by the Tribunal than by the Court. (3) If the Court directs that the claim be referred to the Tribunal, the Tribunal may: (a) make a finding that native title rights and interests exist for the purposes of determining compensation where the Tribunal is so satisfied on a prima facie basis; and (b) adopt such procedures as it wishes in relation to the determination of value of compensation payable, including obtaining evidence at its own expense and limiting the extent to which expert evidence may be tendered and may be the subject of challenge by parties other than the claimants. (4) If a claim is referred to the Tribunal by the Court in accordance with this section, the Tribunal: (a) is not bound by technicalities, legal forms or rules of evidence; and (b) must formulate its own procedures so as to minimise any legal expenses involved for the parties; and (c) may direct the Government party to meet any reasonable costs of the claimants as seem appropriate, including the costs of obtaining expert evidence as to value; and (d) must take account of the cultural and customary concerns of Aboriginal people and Torres Strait Islanders; and (e) may include in the compensation payable any reasonable costs incurred by the claimants.(191) Schedule 2, item 6, page 147 (lines 21 to 28), omit the item, substitute:6 Subsection 13(2)Omit the subsection, substitute: (2) If an application is made to the Federal Court for a determination of compensation, the Court must, if there is no approved determination of native title in relation to the land or waters concerned: (a) make a direction under section 53A; or (b) assess compensation and direct that it be held in trust under section 54; or (c) make a determination of native title as at the date on which the act giving rise to the claim took place.Amendment 160 adds a simplified procedure for claiming compensation where the cost of the claim outweighs the likely compensation. It adds a new section 53A. Amendment 191 removes the proposed time limit on compensation claims, which applies to section 50(2A).Amendments not agreed to.Amendment (Senator Woodley's and Senator Margetts's) not agreed to:(179) Schedule 1, page 139 (after line 2), after item 45, insert:45A Paragraph 239(c)After "Territory", insert "or by any person where the act is permitted to be done under a law of the Commonwealth, the State or the Territory".45B At the end of section 239Add:;or (d) any person pursuant to a grant, licence, permission or authority made or given under a law of the Commonwealth, the State or the Territory. 00:11:002273Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I move:(221) Schedule 2, page 183 (after line 20), after item 20, insert:20A Section 94Add at the end: (2) In determining an application for compensation, the Federal Court must order the Government party to pay all of the applicant's legal costs and disbursements if: (a) the claim is successful in whole or part; or (b) if the claim is not successful—the Court is satisfied that the prosecution of the claim was reasonable. (3) If an award of compensation is made by the Federal Court under the procedures provided in this section, and there is no approved determination of native title at the time the compensation is payable: (a) the Court may order that the compensation be paid to the representative body for the land or waters concerned to be held by it in trust for those claimants who are entitled to the compensation; and (b) if there is a dispute between claimants as to the entitlement of any person to share in the compensation, the representative body must attempt to resolve the dispute; and (c) if such attempts at dispute resolution are unsuccessful, the representative body may refer the matter to the Tribunal for arbitration.This amendment requires the government party to pay the native title party's costs of all reasonable compensation applications. It is additional to section 94 and deals with the power of the Federal Court to deal with compensation where there is no determination of native title.Amendment not agreed to.00:11:002273Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I just make a procedural point. It has been agreed among us that in relation to the renewals item there was a problem with the division that occurred in that, because we had granted extra pairs, there was a miscounting of pairs which resulted in a proposition which would have been negatived actually being carried. I would therefore like to recommit it. I think it has been agreed that it should be; it is just a question of whether we do that now. I was hoping that there would be a division called—not that I normally hope that divisions are called—so that we could deal with this one as well. If everybody agrees that we deal with it at the first division tomorrow, I am happy not to have an artificial division now.6H4HARRADINESenator Harradine—It would be interesting to see how many turned up!JX4Minchin, Sen NickSenator MINCHIN—We could call them off their sofas and do it now.00:13:002273Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I do not have a problem with dealing with it now, but I do give Senator Harradine a warning that I can part accommodate his position of not taking a side in the debate. There are, I think, four Democrat-Greens (WA) amendments—80 to 83—that we have looked at. No. 80 is one that we think is important. Nos 81, 82 and 83 are amendments that the opposition will not be supporting anyway. So if you like to defer this until tomorrow and someone has a look at Democrat-Greens (WA) No. 80 as opposed to 81, 82 and 83, we may be able to accommodate your interest in voting on both sides on this basket of issues, if you so desire. But No. 80 is one that I would like to argue out so maybe tomorrow morning is a better time for that.00:14:002273Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I would like to record my thanks for the cooperation in that matter. I move:(54) Schedule 2, item 19, page 151 (table, item (1) of 3rd column of row relating to Native title determination application), omit item (1), substitute: (1) A person or persons authorised by all the persons (the native title claim group ) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group; or Note 1: The person or persons will be the applicant: see subsection (2) of this section. Note 2: Section 251B states what it means for a person or persons to be authorised by all the persons in the native title claim group.(55) Schedule 2, item 19, page 152 (table, item (2) of 3rd column of row relating to Compensation application), omit item (2), substitute: (2) A person or persons authorised by all the persons (the compensation claim group ) who claim to be entitled to the compensation, provided the person or persons are also included in the compensation claim group. Note 1: The person or persons will be the applicant: see subsection (2) of this section. Note 2: Section 251B states what it means for a person or persons to be authorised by all the persons in the compensation claim group.(56) Schedule 2, item 19, page 154 (lines 19 to 25), omit subsection (4), substitute:Section not to apply in section 47, 47A or 47B cases (4) However, subsection (2) or (3) does not apply to an application if: (a) the only previous exclusive possession act or previous non-exclusive possession act concerned was one whose extinguishment of native title rights and interests would be required by section 47, 47A or 47B to be disregarded were the application to be made; and (b) the application states that section 47, 47A or 47B, as the case may be, applies to it.(57) Schedule 2, item 19, page 155 (lines 8 to 14), omit all the words in paragraph (1)(a) after subparagraph (iii), substitute: (iv) that the applicant is authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it; and Note: Section 251B states what it means for the applicant to be authorised by all the persons in the native title claim group. (v) stating the basis on which the applicant is authorised as mentioned in subparagraph (iv); and(58) Schedule 2, item 19, page 157 (lines 9 to 15), omit all the words in paragraph (3)(a) after subparagraph (ii), substitute: (iii) that the applicant is authorised by all the persons in the compensation claim group to make the application and to deal with matters arising in relation to it; and Note: Section 251B states what it means for the applicant to be authorised by all the persons in the compensation claim group. (iv) stating the basis on which the applicant is authorised as mentioned in subparagraph (iii); and(59) Schedule 2, item 19, page 158 (before line 6), before subsection (1), insert:Application may be amended to reduce land or waters covered (1A) An application may at any time be amended to reduce the area of land or waters covered by the application. (This subsection does not, by implication, limit the amendment of applications in any other way.) Note: If such an amendment is made, the Court may make an appropriate costs order under section 85A.(60) Schedule 2, item 19, page 164 (after line 16), after section 66A, insert:66B Replacing the applicantApplication to replace applicant in claimant application (1) One or more members of the native title claim group (the claim group ) in relation to a claimant application, or of the compensation claim group (also the claim group ) in relation to a compensation application, may apply to the Federal Court for an order that the member, or the members jointly, replace the current applicant for the application on the grounds that: (a) either: (i) the current applicant is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it; or (ii) the current applicant has exceeded the authority given to him or her by the claim group to make the application and to deal with matters arising in relation to it; and (b) the member or members are authorised by the claim group to make the application and to deal with matters arising in relation to it. Court order (2) The Court may make the order if it is satisfied that the grounds are established.Registrar of Federal Court to notify Native Title Registrar (3) If the Court makes the order, the Registrar of the Federal Court must, as soon as practicable, notify the Native Title Registrar of the name and address for service of the person who is, or persons who are, the new applicant.Register to be updated (4) If the claim contained in the application is on the Register of Native Title Claims, the Registrar must amend the Register to reflect the order.Government amendments 54, 55, 57 and 58 make minor changes to sections 61 and 62 to ensure that applications are made and that matters relating to applications are handled by a person or persons authorised by all the members of the native title or compensation claim group. The purpose of that is twofold: firstly, that the amendments ensure that applications are made with the authority of all the persons who according to traditional law and custom hold the native title claimed and, secondly, the amendments prevent separate applications from being made by members of the same native title claim group. As we have discussed, this deals with the problem of multiple claims coming out of the same group.Government amendment 56 is to subsection 61A(4), which enables applications that would be covered by sections 47, 47A or 47B to be made even though there has been a previous exclusive possession act over all or part of the claim area. The amendment requires that, in order for an application of this kind to be made, the application must state that 47, 47A or 47B, as the case may be, applies to it. The amendment is necessary so that it will be apparent on the face of an application whether or not it is one that may be made under the act.Government amendment 59 makes it clear that applications may be amended at any time to reduce the area covered by the applications and, of course, applications may also be amended in other ways under Federal Court rules. The amendment inserts a note to make it clear that where applications are amended, the court can make orders about costs.Government amendment 60 inserts a new section 66B that provides for members of a native title claim group or compensation claim group to apply to the Federal Court for an order that they replace the applicant in relation to the claim. The Federal Court may make an order of this kind if it is satisfied that the current applicant is no longer authorised by the claim group to deal with the application or has exceeded that authority and that the members who seek to replace the current applicant are authorised by the claim group to deal with the application. The amendment provides a sensible and workable mechanism for ensuring that applicants retain the authority of the claim group so that the wishes of the group as a whole are properly considered during the application process and in other matters which may affect their interests.The government amendment means that if at any time those interests are not being properly represented, action can be taken to replace the applicant. I commend those amendments and would hope that they would have the support of the committee.Amendments agreed to.00:17:002275Bolkus, Sen NickSenator BOLKUSXE4SAALP00—There is one provision here. I hope it did not sneak through without a vote and some debate. That of course is government amendment 60. We have no problems with government amendment Nos 54, 55, 56, 57, 58 and 59 but No. 60 deals with the sunset clause, I believe, or is it 61?10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—It is 61.XE4Bolkus, Sen NickSenator BOLKUS—You are right, it is 61. We are happy with government amendment No. 60 as well.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Senator Woodley, we are on your amendments.00:19:002275Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—No, we are not. I am having trouble keeping up but I am sure I am not alone in that. I ask whether the chair could help me. In the previous regime we were dealing with compensation. The Democrats had amendments 157 to ,159 which were to oppose items 19, 20 and 22. Can you tell me whether we did deal with those and what the result was.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Yes, Senator Woodley, and the questions that schedule 1, items 19, 20 and 22 stand as printed were agreed to. Are you asking any questions with regard to your 160 and 191, 179 and 221, because they were all put and negatived?HX5Woodley, Sen JohnSenator WOODLEY—I was aware of the result there.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Are you right now?12:19:002276Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—Yes. I move:Schedule 1, item 50, page 141 (line 23), omit "all the persons in".(269) Schedule 2, item 95, page 221 (lines 19 to 27), omit the definition of native title claim group , substitute: native title claim group , in relation to a claim in an application referred to in subsection 61(1), means all those persons who, according to traditional laws and customs, hold the communal or group rights and interests claimed in relation to the land or waters the subject of the claim.These amendments clarify that the native title claim applications must include all people who can claim to hold that particular native title—refer to section 251B and 253.00:20:002276Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—Democrat amendments 184 and 269—as I think, if we were listening to Senator Woodley, would have been obvious—do what the government amendments which we have just passed will do. I put to Senator Woodley that these amendments are redundant. We picked up what you are seeking to do in the government amendments.00:20:002276Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I have a process question here. My adviser advises me that there should potentially be a Democrats-Greens (WA) amendment 196 also dealt with in this section, which deals with the application for a deter mination of native title for schedule 2, item 19, page 153. Considering it is not on the running sheet, I might need some advice about where best to move it. I understand it should be in that first section on applications.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—According to the list of amendments, it would appear that it should be on the running sheet. Is it appropriate that we combine it with the ones that have just been moved or should we deal with it separately, or would you like to defer it, Senator Margetts?DX5Margetts, Sen DeeSenator MARGETTS—I would like to report progress and get some sleep.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—In about another seven minutes, we will do that. It is just a question of whether or not you would like to include your amendment 196. My advice is that it might be better to have it double checked overnight and get it dealt with tomorrow. At the moment we will continue to deal with the amendments 184 and 269. The minister has advised Senator Woodley that they are effectively picked up by government amendments dealt with earlier. Are you happy with that explanation or do you seek some further clarification?00:22:002276Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I would never doubt what the minister told me, but I would feel more comfortable if we could check that overnight as well.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Murphy)—Do you seek to defer amendments 184 and 269?HX5WOODLEYSenator Woodley—I do.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Senator Margetts, where does that leave your amendments 197 and 198?00:23:002276Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Having only just got this in my hand, and Senator Woodley is in a similar situation, even if we go ahead with things, we are already finding bits of amendments which, for various very good reasons, have not been on there. I really think that we ought to report progress and not try to squeeze something into the next seven minutes which we are going to have to redo tomorrow.Progress reported.Adjournment2277Motion (by Senator Minchin) proposed:That the Senate do now adjourn.227700:24:002277Ray, Sen RobertSenator ROBERT RAYUI4VICALP00—At a doorstop today, the Minister for Justice, Senator Vanstone, complained that I had abused privilege by raising allegations in last night's adjournment debate. I will not be canvassing those issues again tonight, but I do find the hypocrisy of the coalition breathtaking. It was only four years ago that we in this chamber witnessed members of the coalition raising operational matters that were then before the Australian Federal Police. They canvassed them in this chamber at question time, on other occasions and on the adjournment; canvassing them at the estimates committee, and canvassing them in camera at a select committee that had nothing to do with those issues. The fact is that the matter I referred to last night has been referred to the Australian Federal Police, but that in no way stopped the Minister for Workplace Relations and Small Business, Mr Reith, tonight from canvassing those issues in the House of Representatives. In fact, he canvassed them in the House of Representatives by telling people that he had made his own investigation. Here we have the minister for industrial relations investigating matters when the matters have already been sent to the Australian Federal Police for investigation. I note for the record that the last time Penthouse Pete raised these sorts of issues and accusations against former Senator Gareth Evans and myself, DAS investigated them and brought in a total clearance of both of us. He was left with egg on his face but never withdrew the allegations. In the House of Representatives tonight, Mr Reith said that I should put up or shut up. He demanded that the Leader of the Opposition, Mr Beazley, come into the chamber and put the evidence on the record. Yet his colleague Senator Vanstone wrote to me—and you might have read that, because she tabled the letter today—and said:I trust that from now on, you will assist the authorities to investigate the matter fully. I certainly intend to do that. But you cannot have it both ways as a government. You cannot have the Minister for Justice writing to me saying, `I wish you, from now on, to take these matters up with the Federal Police,' and have Mr Reith canvass them in full in the House of Representatives. There is some sort of dilemma there for the government as to what its approach is. But if I can read body language correctly, and I do not know if I can, I got the impression from the debate in the other place tonight that the Prime Minister, Mr Howard, did not know these matters had been referred to the Federal Police. He seemed quite surprised by that in the House of Representatives and went over to the advisers' box to check. I think Mr Howard would have taken the view, as he has on many other occasions, and we can go to the quotes in the House of Representatives in the last two years, that when a matter goes to the Federal Police it is not canvassed in the parliamentary chamber. I, for one, think Mr Howard did not know of this reference. I have no way of knowing other than watching his reaction.WP6LIGHTFOOTSenator Lightfoot—That's a convention; that's not sub judice.UI4Ray, Sen RobertSenator ROBERT RAY—No. As you say, that is a convention and a convention that has not always been followed, Senator Lightfoot, before you were here. You will find that certain operational matters to do with Operation Wallah were widely canvassed in this chamber, especially in the estimates committee when the Federal Police appeared before them. At the conclusion of question time today, Senator Vanstone tabled her letter to me. She did not ask me for permission to table a letter to me, but nevertheless did so. I regard that as an inaccurate letter, but I believe she tabled it in order to be protected by privilege. That is the very thing she accuses me of—using privilege to get material protected.But I must say, and Senator Vanstone is present, that I was not happy to be faxed that letter just eight minutes before question time. Upon receiving it, I contacted Senator Vanstone and pointed out what I regarded as an inaccuracy in the letter, which I thought she acknowledged in a manner in question time, but she still tabled the letter with the inaccuracy in it.7E4VANSTONESenator Vanstone—It goes with the question time remarks; you know that.UI4Ray, Sen RobertSenator ROBERT RAY—All right. I will take it as question time remarks overriding the letter, and I accept that, Senator. But a far more serious inaccuracy is contained in Senator Vanstone's letter to the Commissioner of the Australian Federal Police. In that letter, Senator Vanstone said the following:Senator Ray alleges that two Members of Parliament had committed fraud against the Commonwealth, by generating and submitting to the Australian Taxation Office false accommodation receipts.Let me go back to what I said last night, and I want to put two quotes—the only two quotes that refer to this—on the record. I said:The only purpose for which I could imagine it was done is for taxation purposes.I went on to say:I assume it was for tax purposes, but I cannot be absolutely certain.Those were the two statements I made last night. Yet we have a Minister for Justice writing to the federal police in terms that were not the terms of my speech. In effect, what she referred to the federal police was not based on the statements I made last night, but on the inferences that she took from those statements. If that is a valid ground for reference to the federal police, at least Senator Vanstone should have got that part accurate. To her credit, she attached my adjournment speech to the letter so that at least the federal police could use that not as an evidentiary base—because we know it cannot be used as an evidentiary base—but as an indication of the issues I raised, but it is in contradiction to the actual reference to the federal police.Government senators interjecting—UI4Ray, Sen RobertSenator ROBERT RAY—Madam President, they sent a message out through the whips to come in to disrupt me. We know that. I am not going to respond. Senator Vanstone made a reference to the AFP which was, in my view, based on a false premise— based on claims I did not make. Nevertheless, now that it is there, it should be investigated.7E4VANSTONESenator Vanstone—You'd be happy for us to do nothing.UI4Ray, Sen RobertSenator ROBERT RAY—Senator Vanstone says that we did nothing.7E4VANSTONESenator Vanstone—That is not what I said. I said you'd be happy for us to do nothing.UI4Ray, Sen RobertSenator ROBERT RAY—Long before Senator Vanstone referred it to the federal police, the opposition referred it to the Australian Taxation Commissioner for investigation. Therein lies the defeat of that claim. I have three questions to pose here. Is Senator Vanstone always going to table references to the federal police in this chamber? She did on this occasion. Are you always going to do it when accusations are made by any member of parliament? Are you actually going to table the letter to the police commissioner in the parliament? I think not. It has not been the past practice. It will not be the future practice. It will simply be the practice this time out of political opportunism.Government senators interjecting—10000PRESIDENTThe PRESIDENT—Order! There are too many interjections.UI4Ray, Sen RobertSenator ROBERT RAY—The second aspect is whether Senator Vanstone is now going to write to Mr Peter Reith, pointing out that raising operational matters whilst they are under police investigation is not the normal process of government. Are we going to get that letter to Mr Reith? You are very quick to write me letters. Are you going to write to Mr Reith and point out that—7E4VANSTONESenator Vanstone—You came in here to chuck a bit of sleaze; you hoped no-one would—UI4Ray, Sen RobertSenator ROBERT RAY—It is no longer a matter of principle. The Minister for Justice can go out and do a doorstop and puff up and say that all these things are a matter of principle, but when the principle is put back to her about whether she agrees with parliamentarians interfering in operational matters of the federal police, she simply dismisses the claim.Senator Heffernan interjecting—10000PRESIDENTThe PRESIDENT—Order! Senator Heffernan, putting your hands over your mouth and shouting is totally disorderly and unacceptable.UI4Ray, Sen RobertSenator ROBERT RAY—The final point is: if we as an opposition had just once canvassed matters referred to the Australian Federal Police regarding former Senator Woods, former Senator Crichton-Brown, Mr Cobb and Senator Colston, what would Senator Vanstone's reaction have been? Senator Vanstone, not once did we raise those issues after they went to the federal police. I look forward to your writing to Mr Reith and explaining to him that that is the principle adopted in this chamber and it should be adopted in the other chamber.227900:34:002279Hill, Sen RobertSenator HILLBH4SALPEnvironment10—The master of sleaze has let himself down badly tonight. It is not Senator Vanstone who is the issue tonight, Senator Ray; it is you. There were two options open to Senator Ray tonight. The first option was that he would come in here and substantiate his claim. The second option, after a day of reflection, would be that he would come in here and say that his claim was not well founded, that he was in error and apologise.Senator Ray comes in here tonight and says, `No, I haven't raised matters of illegal activities.' Look at his speech last night. What did he say? `Defraud,' he said. `This is a matter of fraud.' A little further up he said, `This might amount to forging and uttering.' He is saying that he is raising a matter of illegal activity and he is raising it against unnamed members of the government. He specifically refers to an unnamed South Australian member in his speech last night. He refers to this particular illegal activity being transferred to Queensland and then being adopted by two Queensland members of the government. The only accuracy in what he said last night was:I am going to take the weak option . . . He certainly did that last night because he did not actually accuse any individual and he did not seek to substantiate the case against them.He knew the effect of what he was doing last night. He knew that the press would be on the witch hunt this morning. He knew that the press would be ringing coalition members of parliament wanting to know whether they had adopted this particular illegal scheme. He knew that was what was going to happen, and he knew that names would be bandied around the place. I wonder where the press got the names of coalition members and senators that have been bandied around the pressgallery. I suppose you will suggest that they got them from the coalition. The material that was seen on television tonight was a pitiful attempt to substantiate his case, which was debunked by Mr Reith in the House of Representatives. Where did that material come from? Of course, it came from the opposition.The chance was there for Senator Ray tonight.Honourable senators interjecting—10000PRESIDENTThe PRESIDENT—Order!5K4FAULKNER Senator Faulkner—You are always dropping it on them! All the time!10000PRESIDENTThe PRESIDENT—Senator Faulkner, there has been far too much shouting on both sides of the chamber. It makes it impossible to hear exactly what is going on, and senators should come to order.BH4Hill, Sen RobertSenator HILL—The chance was there for Senator Ray, after he and his colleagues had allowed the whole of today to pass, and the names of various coalition members and senators to be dragged through the mud. Senator Faulkner, you know what is going on.5K4FAULKNER Senator Faulkner—Rubbish!BH4Hill, Sen RobertSenator HILL—You were no doubt part of this conspiracy! It has got all the hallmarks of the Baillieus over again. Did they worry about defaming of Baillieus? Did they worry about getting the facts? They were not interested in the facts; all they were interested in was defamation. Smear! Try to drag a few names through the mud!5K4FAULKNER Senator Faulkner—You are dropping them in all the time.10000PRESIDENTThe PRESIDENT—Senator Faulkner!5K4FAULKNER Senator Faulkner—You are trying to do it all the time.10000PRESIDENTThe PRESIDENT—Cease interjecting!5K4FAULKNER Senator Faulkner—They are interjecting on both sides.10000PRESIDENTThe PRESIDENT—You are shouting!5K4FAULKNER Senator Faulkner—They are interjecting over there.10000PRESIDENTThe PRESIDENT—Order!5K4FAULKNER Senator Faulkner—I am not going to be singled out.BH4Hill, Sen RobertSenator HILL—The technique is well known. Throw enough mud and some of it will ultimately stick. It is the way in which Senator Faulkner has approached his job. He did it with the Baillieus. He even defamed dead people. But did he have the courage to come in here and apologise for it? No! Has Senator Ray, who now knows he has made an awful mistake, got the courage to come in here and apologise tonight? No! They won't do that. The Labor Party, when they know they are wrong, when they know they are smearing people unfairly, when they are dragging people's reputations through the mud and they know their allegations to be untrue, will not apologise under any circumstances.That is not the sort of behavioural standard we would have expected from Senator Ray. Senator Ray, for years, has come in here and said to us, `I play it tough, but I play it straight.' Senator Ray, this is not playing it straight to refer to members from South Australia, members from Queensland and to an illegal activity to gain taxation benefit, but not to have the courage to name them and put your evidence on the table. The only determination that one can reach from that set of facts is that the evidence is not there to substantiate the claim.What is the complaint of Senator Ray against Senator Vanstone? It is that she did what Senator Ray should have done and that is, if he had evidence of illegal activity, referred it to the police. Any honourable senator would have seen that as the proper course of action to take from the start. What did Senator Ferguson say, immediately after Senator Ray, when he rose to his feet? He said, `If you've got evidence, you should put it before the police.' But that wasn't what Senator Ray was about. What Senator Ray was about was throwing a bit of mud.The number two item on the ABC Radio news this morning was: new allegations against coalition members. It worked, Senator Schacht!4J4SCHACHTSenator Schacht—You are blaming the ABC again.BH4Hill, Sen RobertSenator HILL—You make an allegation and they will report it, and people believe it to be fact.4J4SCHACHTSenator Schacht—You are using this to attack the ABC.BH4Hill, Sen RobertSenator HILL—You have developed this as an art form on your side of this chamber, Senator Schacht. It worked, and you fed a bit more material to the press corps during the day. It is a major item on every commercial television news service tonight. Well done! The people of Australia believe, as a result of what you are saying, that there are those in the coalition who are engaging in some illegal activity. That is the greatest abuse possible of the privilege of this place.As Senator Kemp reminded us recently, Senator Ray used to say, `Ten paces to courage', but he uses this coward's castle to serve his grubby political purposes when he hasn't got the guts to name people and make allegations. This is a great disappointment to all senators who believe Senator Ray to be honourable. Senator Ray, you ought to have come in today and said, `I cannot substantiate these matters; I regret that I dragged names.'4J4SCHACHTSenator Schacht—There are no names here!BH4Hill, Sen RobertSenator HILL—Senator Schacht, you know the game. You gave the names to the press corps!4J4SCHACHTSenator Schacht—There are no names!BH4Hill, Sen RobertSenator HILL—Senator Schacht, why do you think members of the House of Representatives had to go into the House tonight to say, `It wasn't me'? It is because your lot gave their names to the press corps. You set down the basis of the claim; you refuse to provide the detail.4J4SCHACHTSenator Schacht—The fact is that the Queensland Liberals are leaking all the time.BH4Hill, Sen RobertSenator HILL—Under the cover of the second floor, you say, `There is one from South Australia. I will whisper who it is.'Honourable senators interjecting—10000PRESIDENTThe PRESIDENT—Order! Order! I cannot hear what Senator Hill is saying because the level of noise in the chamber is absolutely out of control.BH4Hill, Sen RobertSenator HILL—Senator Schacht knows what happened. You went up to the gallery and you told them there was one from South Australia, and you named the person. And you said there were two from Queensland and you named them as well. That is a disgrace. It is abuse. It is cowardice. You have done nothing to lift the former great name of the Australian Labor Party. You have dragged the Labor Party down to new lows. You did it with the Baillieus and you have done it with this exercise. Senator Bolkus did it with his use of illegal court material the other day.This opposition has chosen this path. Mr Beazley has said that the only way back to government is to play the negative game. Forget the positives. Don't try to develop yourselves into an alternative government. All right. If that is your choice, you may conduct yourselves that way; but that is no justification to defame innocent people. People know this game. Those who come into federal politics know that it is tough, but they have every right to expect to be treated fairly. They have every right to expect that those on the other side—particularly the leaders on the other side—won't use the coward's castle to defame them. This has been a low day for the Australian Labor Party; a low day indeed. It is about time they lifted their sights and tried to turn themselves into a decent opposition.228100:45:002281Bartlett, Sen AndrewSenator BARTLETTDT6QLDAD00—It is nice to see so many of you turn up tonight for my speech. I wish to speak tonight on an issue of importance to a great number of people on the south side of Brisbane concerning the proposed expansion of Brisbane airport. Last weekend I attended a meeting at the Colmslie RSL Club in Morningside, on the south side of Brisbane. It was held to provide information to the people of that area of Brisbane about the potential impacts of the proposed expansion of the Brisbane airport.A draft master plan was released a few weeks ago, and 90 days has been allowed for people to make comments on it. It is a very extensive document, detailing proposed quite extensive expansions to the airport. It envisages the construction of an additional runway and an extension of the length of the two existing runways. It also has plans for the creation of an airport city, with business zones, shopping areas and a transport hub linking shipping, rail and air. In short, it is a very major proposal.It is important to note that the people of the south side of Brisbane have had to endure, for about 10 years now, unacceptable levels of aircraft noise following the construction of the new Brisbane airport. They are levels of noise which they were assured would not occur, and they have had various assurances ever since that this degree of noise was being dealt with. But the reality is that those problems have not been adequately addressed. When the word went out that further major expansions were being planned, it is obvious that a lot of people in this area were highly concerned about what might befall them in the future.The meeting on the weekend was exceptionally well attended; 300 to 400 people from that area came along. A further meeting at Cannon Hill, just up the road, is planned for a couple of weeks time, which I expect will get a similar number again. One of the most unfortunate things about this meeting on the weekend is that, despite the fact that all these people came along to be informed about the reality of what is going to happen, about what is being proposed with the expansion of the airport, the Brisbane Airport Corporation declined to appear.Regardless of all the arguments for and against expansion of the airport, a parallel runway and other alternatives, the Australian Democrats and I believe that it was totally unacceptable and a great shame that the Brisbane Airport Corporation chose not to come along to inform the people of what was going to occur and to provide some facts from their perspective. They can hardly complain when other people get up and put forward all sorts of horror scenarios about what it is going to mean when they are not there to put forward the alternative view.It is not surprising, given the rough deal the people of the south side of Brisbane feel they have been given over the last 10 years, that there is a great deal of mistrust and anxiety about what might happen with the Brisbane airport. This was a major public forum; hundreds of people came along. Yet the airport corporation decided that they did not want to come. The only reason they gave was they prefer to speak to small numbers of people, to individual community groups, and they do not wish to speak to large forums. I believe that is completely unacceptable and really does the airport corporation a great disservice, regardless of whether what they are proposing is a good thing.I understand that it is part of the act that the federal Minister for Transport and Regional Development (Mr Vaile) has to satisfy himself, before he approves any plan to expand the airport, that adequate consultation occurred and there was adequate opportunity for informed input from the community. But, when the major corporation that is putting up their preferred option in a big glossy document, with all the usual reassuring maps and diagrams, et cetera, refuse to come along and answer direct questions on it in a public forum, I believe that really puts into serious doubt the adequacy of the consultation process.As all senators would know, it is a great shame that there is a lot of disaffection throughout the community at all levels in relation to people's trust in politics, trust in government and trust in large corporations. We always talk about trying to repair that trust, trying to convince people that we have their best interests at heart. Yet, when a large group of people on a Saturday afternoon gather to get answers and to just get informed and the people who are proposing to make this major change, which potentially has massive impacts on this area, do not turn up to put their perspective, to answer questions or, just as importantly, to hear the concerns directly from the community—not just about what might happen with the proposed expansion but also about their concerns regarding what is occurring now—these people quite justifiably feel that over the years they have been ignored, that they have not been listened to.Present at the forum was the federal member for the electorate of Griffith, Mr Graeme McDougall, who represents that area, as was the Labor candidate, Mr Kevin Rudd, who is having his second shot at the seat. They had lots of proposals and lots of questions—some fairly firm, some more polite—put to them. Both of them were given a fair bit of work to do in lots of ways. One of them, at least, could have been more convincing in terms of the answers they were giving. But at least they turned up; they were willing to answer the questions, address the issues and hear what people's concerns are.At the end of the day, it is the airport corporation that is putting forward this draft plan, which is very comprehensive. They have their preferred option; they have glossed over the other three very minimally. For them not to show up is completely unacceptable. The consistent message from people in these suburbs on the south side of the Brisbane River—Coorparoo, Norman Park, Bulimba, Cannon Hill, out through to Tingalpa and to the bayside—is quite clear: the existing level of noise is unacceptable to everyone in that area and it is very difficult to see how what has been proposed here is going to do anything more than increase those levels of noise.Add to that issue, which is probably the prime issue that keeps coming to the fore, other issues, such as the lack of willingness to consider or propose the imposition of a curfew for Brisbane. A curfew seems to be acceptable for cities in other parts of Australia—but not for the Brisbane airport, for reasons that are not explained. There is inadequate outlining of other potential alternative runways.Also, there has been virtually no recognition at all of air pollution, the emissions coming from aircraft. The fact that there are many hundreds of aircraft every day flying over that area barely gets a mention. From studies that have been done in relation to the ongoing issues with the Sydney airport, including major problems with pollution and associated health impacts on people underneath the flight paths, senators would be aware that this is a very significant issue. To not even raise it and hope that nobody is aware of it is just unacceptable.The people in that area are aware of it because they are living under the flight path already. They know what they are getting as it is. They know they are just as likely to get the same thing again, but double. It is no surprise that they are concerned.On top of that, there is the construction of the proposed additional runway itself. That is likely to have adverse effects on the immediate local environment around the airport. The Brisbane airport is located at the mouth of the Brisbane River in Morton Bay, which is a fairly environmentally sensitive area, as most coastal or waterside areas are. I understand that 70 hectares of mangroves will be removed to allow for the new construction.There will be pretty extensive reclamation work required. That will be carried out over approximately 60 hectares of intertidal soft sediment, and will affect local wetland birds. Also required will be construction of a deepwater drainage outlet into the floodway, south of the existing main parallel runway.So there are immediate natural environmental impacts, as well as health and living environment impacts on the people situated on the south side of the river. There is the major issue of noise pollution. Again, it seems that the sorts of options that are put forward really gloss over or put forward half the story. It is no wonder that the people on the south side of Brisbane do not trust what they are being told; and it is even less of a surprise when the people who are telling it to them refuse to turn up to major public forums to hear concerns and put forward answers to the issues.The Democrats would simply say to the Airports Corporation and to the federal government—which at the end of the day has to take the decision on this issue: please listen to the community; please make sure that the people who need to do the consulting hear the community's concerns and provide enough information to enable them to have informed input into this process. Otherwise, the disaffection and distrust that currently exists will only get worse. That will be doing a disservice not only to the people of that area but to all of us.228300:55:002283Alston, Sen RichardSenator ALSTONLD4VICLPCommunications, the Information Economy and the Arts10—I wish to speak on what is clearly about the lowest watermark one could ever imagine in terms of the ALP's approach to politics in this country. Today is clearly another day of shame and ignominy, and one that is led by a man who, for many months now, has paraded himself around in a garb of sanctimonious unctuousness, pretending all the time that somehow he is interested in the welfare of the parliament. The fact is that he has never, ever canvassed any policy issues since the last federal election. All he has ever done is dredge through the gutter, digging up sleaze, conducting a systematic campaign of distortion and misrepresentation.What we have seen in this instance is Senator Ray setting up an environment in which he and his mates have been able to go up to the gallery, name Liberal members of parliament, invite the press down to take photographs of material that they have—in other words, create an entire climate designed to fit the Liberal Party. So, as a result, on the Today show this morning, we had a headline, `Government embroiled in new rorts row'—all orchestrated by someone who knows full well that what he is doing is an absolute disgrace.To have the gall to somehow pretend that he has not actually accused anyone of fraud, that all he has done is state a few facts beggars belief. It is an insult to the intelligence. Anyone who examines what Senator Ray had to say last night—and I was in here to hear it—knows full well that he talked about scams, he talked about fraud, he talked about forging and uttering. In other words, he made it absolutely clear that he was systematically imputing fraud and misbehaviour on the part of Liberal members of parliament.In fact, Senator Ray went so far as to indicate that there was one member of parliament from South Australia and another from Queensland. But, of course, he was not prepared to name anyone; he was not prepared to spell out any of the allegations. All he said was that he believed his informant was reliable.We are not here to take his word for it. In fact, I think it is entirely incumbent upon Senator Ray to explain precisely where he got the information, if in fact he got it. I think we have now reached the stage where we do not believe a word that Senator Ray says. After all of this hand wringing and all this pretending to be concerned about the welfare of others, every time that Senator Ray gets to his feet, it is to sink to another low.What Senator Ray has done in this instance is to cast a slur over the entire Liberal Party. He has done it quite deliberately and maliciously. He has done it in such a way that he is hoping that the Labor Party will get through to the next election without ever having to come up with any policies, without having to do anything other than try and discredit their opponents in the most disreputable and dishonest way one can ever imagine.Madam President, do you remember what he had to say about Senator Colston, whom he hounded remorselessly for months on end? The appropriate epithets for Senator Ray are `the vicious viper from Victoria', `the sultan of sleaze'. He relishes that reputation, much and all as he might pretend that somehow he has a higher purpose. I do not know why he is in this parliament. For the last two years he has spent all his time trying to find ways of discrediting his political opponents—and he does not care whom he drags down in the process.In the last 24 hours he has been absolutely caught short. He has not been able to come into this parliament and substantiate any of these allegations. He is simply content to get up and take some very spurious points of demarcation with Senator Vanstone. There it was for all to see: someone who had absolutely nothing to support his case but who was trying to play semantic games, to pretend that somehow all he had been doing was rais ing some concerns—when what he was doing was abundantly clear to anyone who even listened half-heartedly. What he was doing was systematically casting a slur upon his opponents in such a way that it was very difficult to rebut, because there was not enough there for substantiation.It is an absolute disgrace. We do not expect the Labor Party to do anything by way of apology because we know the Faulkner creed. The Faulkner creed is: no matter how low in the gutter you get, no matter who you defame, no matter how gross the slander, you never apologise, you never explain. As Senator Faulkner says, `I have never got anywhere in my political career by taking one step backwards.' Lovely, is it not? In other words, I do not care who I tread on, I do not care who I knife, I do not care what I say, I do not care how we do it, as long as we drag you down, as long as we win by sticking in the knife, we think we have done well. We could not give a damn about Australia. We are not interested in alternative policy approaches. Our task in life for the last two years has been to simply trawl through the gutter, to come up with anything we can, totally unsubstantiated.Look at the Senator Parer allegation about letterheads being distributed. There was nothing to substantiate it. There was no follow-up in question time. It was leaked through the Sunday Age and then out it went into the ether. All of this black cloud is left hanging. They go quiet for a couple of days and then they are back into it again. They have a program of trying to target individuals to cast slurs on them. It does not matter about Senator Parer's family or his reputation. No, you simply say that he is a $2 million man.LI4PATTERSONSenator Patterson—Or his staff.LD4Alston, Sen RichardSenator ALSTON—Or his staff or anyone else for that matter. Anything that gets in their way is irrelevant.5F4CALVERTSenator Calvert—The party walked away from him tonight.LD4Alston, Sen RichardSenator ALSTON—I think half of them managed to turn up tonight. They know that he has blown it. They have told us. They cannot understand how Senator Ray can expect to get away with this sort of behav iour, and nor does the Australian public. We have long passed the stage where you can get up and cast those sorts of aspersions and think that somehow you can wring your hands and walk away from it. You cannot.Unless you are prepared to come in here and do a lot better than Senator Ray and Senator Faulkner have ever thought of doing, then they will be condemned by the Australian public in due course. The moment of truth will be arising in the next period of months. They will then face the moment of truth, and that will be that they have not spent the last two years on anything that the public is interested in. All they have tried to do is to denigrate and discredit their political opponents. And they will pay the price for that. I hope that Senator Ray then has the decency to quit this parliament and to allow the standards to go up a little bit. The example that he sets in recruiting some of these lackeys to come in here and follow in the same pattern is an absolute disgrace to this institution.To think that Senator Ray can go around trying to pretend that somehow he is concerned about the institution is absolute hypocrisy at its highest. I do not need to say any thing further other than that Senator Ray's actions and words speak louder than we could. He is condemned out of his own mouth. We do not expect him for a moment to have the decency to come in here and apologise, but we will make sure he never forgets this day. (Time expired)Question resolved in the affirmative.01:03:002285Senate adjourned at 1.03 a.m. (Wednesday)Documents22852285The following government document was tabled:Australian Dried Fruits Board—Report for 1996-97.2285The following documents were tabled by the Clerk:Defence Act—Determinations under section 58B—Defence Determinations 1998/14 and 1998/15.Answers to Questions on Notice2286The following answers to questions were circulated:2286(Question No. 1080)10802286Murray, Sen AndrewSenator Murray3M6WAAD00 asked the Assistant Treasurer, upon notice, on 5 March 1998:(1) Did the Australian Competition and Consumer Commission [ACCC] take any action in 1997, under the boycott provisions of the Trade Practices Act 1974, concerning industrial action by unions which were claimed to be to protect the environment or consumers, for example, green bans; if so, can details be provided.(2) Has any environmental, consumer or human rights individual or group of activists or body corporate been investigated, fined, prosecuted or incarcerated, since the commencement of sections 45D, 45DA and 45DB of the Trade Practices Act 1974, for blockade style protest action; if so, can details be provided.(3) Under these sections, has any environmental, consumer or human rights individual or group of activists or body corporate been investigated, fined or prosecuted for boycott campaigns; if yes, can details be provided.(4) Under these sections, has any Aboriginal individual or group of activists or body corporate been investigated, fined or prosecuted for protesting because of land rights or spiritual reasons.(5) Have any company injunctions been taken out under the Workplace Relations Act 1996 or the Trade Practices Act 1974 against protests and boycott actions by consumers, environmentalists or human rights activists, whether individuals, groups or bodies corporate; if so, can details be provided including a comparison of the number with action taken in previous years under the Industrial Relations Act 1998.(6) Have any unions been prosecuted under the boycott provisions because their members have engaged in environmental or consumer protest, such as a forest blockade.(7) Has the Minister received any complaints since the promulgation of the Workplace Relations Act 1996 and the new sections 45D, 45DA and 45DB of the Trade Practices Act 1974, that the new Act has stifled environmental, human rights, spiritual, cultural or consumer protest in any way; if so, can details be provided. 2286Kemp, Sen RodSenator KempWW4VICLPAssistant Treasurer10—The Treasurer has provided the following answer to the honourable senator's question:(1) No such action has been taken by the ACCC.(2) The ACCC has indicated that it has conducted no such investigations nor commenced any legal proceedings against such individuals or groups. However, it is noted that individuals or companies may commence legal proceedings against other parties for allegedly breaching Part IV of the Trade Practices Act (including sections 45D, 45DA and 45DB), in their own right. Penalties are payable only in actions instituted by the ACCC. The ACCC is unaware of any such private actions being instituted against environmental, consumer or human rights groups.(3) See response to question 2.(4) See response to question 2.(5) The ACCC has indicated that it has not taken out injunctions under the Trade Practices Act in relation to such matters. However, it is noted that individuals or companies may seek injunctions against other parties for allegedly breaching Part IV of the Trade Practices Act (including sections 45D, 45DA and 45DB), in their own right. The ACCC is unaware of any private injunctions being sought against protest or boycott action by environmental, consumer or human rights groups.The Minister for Workplace Relations and Small Business is responsible for matters concerning the Workplace Relations Act. The Minister has indicated that his department has no record of such `injunctions' being taken out under that Act. The Minister has also indicated that his department has no record of any instance where an injunction was granted under the Industrial Relations Act in circumstances that could be described as involving protests and boycott action by consumer environmentalists, or human rights activists.(6) The ACCC has taken no action against any unions under the boycott provisions in the Trade Practices Act where their members have claimed to be engaged in environmental protection or consumer protests. However, it is noted that individuals or companies may commence legal proceedings against unions for allegedly breaching Part IV of the Trade Practices Act (including sections 45D, 45DA and 45DB), in their own right. Penalties are payable only in actions instituted by the ACCC. The ACCC is unaware of any private action being taken against unions in such cases.(7) Neither myself nor the Treasurer have received any complaints that the new boycott provisions in the Trade Practices Act have stifled environmental, human rights, spiritual, cultural or consumer protest in any way.The Minister for Workplace Relations and Small Business has also indicated that his department has no record of any complaints that the Workplace Relations Act has stifled such protests.