1998-04-083816SENATE228901998-04-08The PRESIDENT(Senator the Hon. Margaret Reid) took the chair at 9.30 a.m., and read prayers.Bills2289s1592289Motion (by Senator Ian Campbell) agreed to:That the following bill be introduced: a bill for an act to amend and repeal legislation relating to fisheries, and for related purposes.Motion (by Senator Ian Campbell) agreed to:That this bill may proceed without formalities and be now read a first time.Bill read a first time.228909:32:002289Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—I table the explanatory memorandum and move:That this bill be now read a second time.I seek leave to have the second reading speech incorporated in Hansard.Leave granted.The speech read as follows—The Fisheries Legislation Amendment Bill (No 1) 1998 enacts two significant Government policy decisions.The bill completes the abolition of the compulsory export promotion levies on the Australian prawn industry. Until this year, the industry paid two compulsory export promotion levies; the prawn boat levy and the prawn export charge. The levies funded prawn promotion activities through the Australian Prawn Promotion Association (APPA), and cost prawn operators an average of $800 per year.The previous Government imposed the levies in 1995, through the Prawn Boat Levy Act 1995, the Prawn Export Charge Act 1995 and the Prawn Export Promotion Act 1995.In December 1996, I was contacted by a group of prawn operators who said that they strongly opposed paying the compulsory levies and charges. I considered their arguments against the background of the Government's view that compulsory primary industry levies should only be imposed on an industry if the levies have substantial industry support, and there is significant market failure.I decided to hold a plebiscite of the industry, which was conducted by an independent consultant, Coopers and Lybrand. The packages included a `yes' case and a `no' case, prepared by the supporters and opponents, respectively, of compulsory levies. The count of the ballot papers was observed by industry scrutineers.The plebiscite showed that 85 per cent of the operators that voted opposed the levy and the charge. The response rate, 67%, was extremely high.The plebiscite was not, of course, binding, and I carefully considered its results, as well as the outcome of discussions with APPA and representations from prawn operators and exporters.I subsequently announced that the prawn boat levy and the prawn export charge would be abolished from 1 January 1998.The Government partially implemented the decision by making regulations that set the prawn export charge to zero from 1 January 1998.It was not possible to abolish the prawn boat levy by regulation due to technical legal difficulties associated with the definition of a "levy period" in the Prawn Boat Levy Act. Accordingly, the bill defines the final levy period under the Act as the period from 1 July 1997-31 December 1997.The bill repeals the Prawn Export Charge Act, the Prawn Boat Levy Act and the Prawn Export Promotion Act, however, the repeal will not take effect until 2001, to ensure that outstanding levies and charges can be recovered.The bill also provides that the three Acts, Regulations made under the Acts and any agreements made under the Acts will continue to apply after their repeal in respect of any levies imposed before the repeal.I would stress that the bill does not abolish the Australian Prawn Promotion Association, which will continue operating with the voluntary support of the prawn industry. APPA will continue to have access to the $115,000 in accumulated levies held by the Fisheries Research and Development Corporation.The Government enthusiastically supports industries promoting their products overseas, however, it is not willing to use the coercive powers of the state to force prawn operators to pay compulsory promotional levies against their wishes.The second part of the bill amends the Fisheries Management Act 1991 to prohibit commercial fishing operators from taking black marlin and blue marlin in the Australian fishing zone. The bill includes three specific exemptions from the ban: holders of scientific permits, charter fishing operators, and recreational fishers.The bill imposes a penalty of 125 penalty units ($13,750) for a breach of the prohibition and also provides a defence to a prosecution if upon becoming aware of the taking of the fish, the person immediately takes steps to return the fish to its natural environment.Black and blue marlin are prized by game fishers, but are also caught by commercial fishing operators.In the 1996 election campaign, the Government promised that we would impose a mandatory ban on the taking of black and blue marlin by commercial operators if the existing voluntary ban proved to be ineffective.A small number of commercial operators have ignored the voluntary ban; accordingly, we have decided to impose the ban by law.The Government's decision is in line with the recommendations of the recent House of Representatives inquiry into fisheries management, and is supported by the commercial fishing industry, charter fishing operators, and recreational fishers.It has been argued that the prohibition should be extended to cover striped marlin, or maybe broadbill swordfish.The Government believes that the bill represents an honourable and reasonable compromise between the interests of commercial fishers on the one hand and recreational and charter fishers on the other.We would strongly oppose any attempt to extend the ban to cover additional species, and would, if necessary, withdraw Schedule 1 of the bill rather than allow it to impose unnecessary restrictions on the fishing industry.I commend the bill to Honourable Senators.Ordered that further consideration of the second reading speech of this bill be adjourned until the first day of the winter sittings, in accordance with standing order 111.Bills2290r4552290Consideration resumed from 7 April.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Hogg)—The committee is considering Native Title Amendment Bill 1997 [No. 2] as amended. When the committee reported progress, it had just postponed amendments 184 and 269 which had been moved by Senator Woodley. Are you now ready to proceed?09:34:002290Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I move:(196) Schedule 2, item 19, page 153 (line 23) to page 154 (line 18), omit subsections (2) and (3), substitute: (2) An application for a determination of native title must not (as far as is reasonably practicable) cover an area of land or waters in relation to which native title has been extinguished. (3) If such an area is included in the boundaries of a claim, it must (as far as is reasonably practicable) be identified and excluded from the claim for a determination of native title.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Is leave granted for all three amendments to be taken together?Leave granted.DX5Margetts, Sen DeeSenator MARGETTS—This is a really vital issue. I think it is very important to consider the importance of this issue for justice. I do not think any one of us would like to be in a situation where, for reasons of complexity and technicality, we have knocked out or caused people's legitimate native title claims to be knocked out on the basis of technicality. That is what we are in danger of doing here.In a short while I will go back to amendments 184 and 269, but Greens-Democrat amendment 196 replaces the absolute prohibition on claims over previous exclusive possession tenures and exclusive rights on non-exclusive tenures with a more general obligation, as far as is reasonably practicable, not to claim areas where native title is extinguished under section 61A(1). This is important because it might involve a more complex mining claim. There are situations where people are in the courts, especially the wardens' courts, daily, sometimes for very long periods of time, trying to knock out people's claims on the basis of technicality. This may well be what indigenous Australians will end up receiving if the bill stands as it is currently written.In Australia, we cannot in all conscience set up a situation where the sheer complexity of the application forms is the basis on which people's claims are not received. We cannot use that as the basis for justice. It cannot be seen that rights can be removed or not obtained legally—in the very narrow sense of `legally'—because, under hundreds of potentially exclusive possession tenures, a mistake, and potentially one mistake, is made.Nobody can tell me that it is the right, fair and reasonable way to go to leave in there the potential for technical knockouts, TKOs, on something as important as establishing native title claim. I think it is outrageous that we have a situation where people have to write their applications like a jigsaw puzzle anyway. I am sure that, between ourselves, as adult people in our society, we can work out how people can establish where their traditional lands exist. After that is established, we can work out the areas where they are unlikely to get a resolution of their native title claim. But, no, the government is not interested in that kind of fairness. But considering they have gone along that road, this amendment is a totally reasonable compromise. I would hate to think that any Australian parliament this century could deliberately leave in the bill a provision which has such potential for technical knockout.Amendments nos. 184 and 269, which have already been moved, clarify that native title claim applications must include all people who can claim to hold that particular native title. We also think that is a difficulty, but this amendment will clarify it so that it is not as onerous as the provision proposed by the government under section 25(1)(b) and section 25(3).I do not know whether Senator Harradine was listening to my first argument in relation to amendment No. 196, but it is absolutely essential, I believe, that we are not associated with an amendment which creates a nightmare of technical knockouts of claims on the basis of mistakes on application forms.09:40:002291Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—We are pleased the Greens have moved amendments Nos 184 and 269 in the sense that they agree with us that this matter should be remedied in terms of authorisation by all members of the native claim group. But I point out that government amendments Nos 54, 55, 57 and 58, which were agreed by the Senate last night, exactly cover this matter—they pick up the very point you make. Therefore, it becomes a problem if you move a subsequent amendment dealing with the same issue. So I would ask you to consider withdrawing those amendments in light of the fact we have already amended the bill to take account of the very issue you raise.Amendment number 196 goes to the heart of part of the problem that is occurring on the ground with native title claims being made—sometimes obviously inadvertently and not deliberately—for land over which there is a freehold title or other exclusive possession title. People receive in their letterboxes notices from the tribunal that so-and-so group has claimed exclusive possession of land that includes their freehold title. That is causing considerable distress and concern, in most cases not intentionally, and it is regrettable.We think it is very important that the bill contain the provisions set out on page 153 that the claimant application is not to be made on land covered by previous exclusive possession act areas. We think it is essential that the claimants ensure that the area they are claiming does not include land where native title has been extinguished by virtue of an exclusive possession act. We are talking about rural properties that are freehold and all that sort of thing.In deference to the point you make, we have introduced—and I think the Senate has accepted—government amendment 59 to make it clear that applications may be amended at any time to reduce the area covered by the application. The very point we are seeking to cover here is to enable applicants—who, as I say, in most cases have unwittingly included freehold properties in their claim area—to very simply and quickly amend their claims to excise those freehold estates from their claim without their being pushed back down the line or the processing of their application being unduly prejudiced. We want to ensure there is a simple and easy way for them to amend their application upon notice from the tribunal—or the registrar, in this case—that their claim covers an exclusive possession area. We think that is the most sensible way to deal with it.We take in good faith the statements made by native title claimants that they are not seeking to claim freehold. As I say, I accept that often where freehold is claimed that is accidental because the claim area is so big. But if we allow applications to remain in the terms of 196, I think we will continue to have on-the-ground problems that really are unnecessary between claimant groups and those who hold an exclusive possession title.09:43:002292Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Mr Temporary Chairman, I am quite happy to have amendment 196 dealt with separately. In fact, honourable senators will recall it is what I have been trying to do all along.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Hogg)—Senator Margetts, we can accommodate that by putting 184 and 269 together and 196 separately.DX5Margetts, Sen DeeSenator MARGETTS—Yes. I would like to clarify also that I did mention that Greens-Democrats amendments Nos 184 and 269 are not enthusiastic support for the government's proposal about native title claims; they are a softening. The government has made some moves in that direction as well. There are many areas in which amendments are being made that do not actually indicate that we like or approve of what the government is doing, so I do not think you should read that into it at all, Minister.I believe we cannot underestimate the importance of amendment No. 196. Senators will have noticed that the minister said that people could at any stage reduce what is on their native title claim. But at some stage there will come a point at which people can simply knock it out on the basis of technicality.It must be understood that not all of the representative bodies that we are dealing with, or the people involved in claims, have the resources to be able to put in a claim that meets the onerous requirements that the government is setting them. For some people, it is a high jump bar they cannot get over, so maybe they will be desperate enough to put in a claim that they believe is accurate on the basis of the information.This is not access to justice. This is not in any way procedural fairness. This is not something that we should in this parliament be responsible for or be associated with. I do not think what the minister has said is any justification at all for leaving this onerous provision unamended and I would absolutely urge the committee to think about amending this provision. It still largely gives the government what it wants, unfortunately, but basically it is a more general obligation and is more reasonable, so it is `as far as practicable'. If I were to be drafting a bill, that is not the way I would be going about it.Because the government has been so determined to make things as hard as possible, because the government has been so determined to knock out as many legitimate and other claims as possible to make it more and more difficult for people to apply, we are ending up with these kinds of provisions. It is like people putting on their thinking caps and thinking, `How could we make it as difficult as possible for people to actually enjoy their native title rights?' This is one of those areas.Even the government will not find themselves covered in glory from anybody if they find themselves simply defending, again and again, what they are doing here. So please, I would be keen to see what the rest of the committee's position is on this matter.09:47:002292Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I will start off by saying that Senator Margetts makes what I think is a very valid point. One of the most insidious parts of the legislation that passed through the Senate last year was the way that procedural rules are used to create more and more barriers to access to native title. As we said last time, it may not be blanket extinguishment but what they have done here is piece together an enormous quilt of extinguishment, and they have done so in this particular instance by making it enormously difficult for people to access rights and putting in all sorts of burdens and liabilities when they try to do so.It is unfair and the unfairness was exacerbated by the fact that so many of these amendments got through last time without what I would claim is sufficient scrutiny. One of those amendments is the one that we are discussing today. If you look at the difference between amendment 196 and the government's proposal, you find that there are two differences: one is that the government's proposal refers to a previous exclusive possession act; the Democrat/Green proposal refers to situations where native title has been extinguished. They do allow for a bit more flexibility in terms of people being able to pursue rights when there is a doubt, and I leave that doubt to be resolved. Given the approach that the Senate has taken on this legislation in respect to extinguishment, in respect to allowing some flexibility and in respect to falling on the side of suspension rather than extinguishment, the Democrat/Green amendment has got merit on that ground.The other thing that we are fighting about here is five or six words—`as far as is reasonably practicable.' The Democrats and Greens want to put that rider into this provision to ensure that people are not unfairly struck out when they are pursuing their rights under the law. Let us remember, in the context of all this, the basic starting point: native title is not something that is bestowed through this legislation. Native title pre-existed this legislation; in fact, it pre-existed white settlement here. So what we are trying to do through this legislation in effect is undermined by the fact that we make it more difficult for people to pursue their rights under this legislation.`As far as is reasonably practicable'—five or six little words, but very symbolic. What the government is doing is saying, `We want to put a very hard line up and if people can jump the barrier, fair enough, but if there is injustice at the edges, then we do not want to know about it.' I think the Senate should know about it and the opposition supports the Democrat/Green amendment.09:50:002293Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I would like to ask the minister: will an application that does not comply under section 61A be struck out under the strike out clause 84C?09:50:002293Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—Do I understand that question to mean: if an application is not accepted it could be struck out? It can only be struck out if it has been accepted. I am not quite sure of your question.09:51:002293Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I will ask the question again, perhaps in ways that might be clearer. If an application has some peccadillo or fault under the provisions of 61A, if there is one of those elements of 61A it does not comply with, will it be struck out using the 84C provision?09:51:002293Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—This is at the application stage, so it is up to the registrar of the Federal Court to decide whether to accept the application or not. Then it is open for someone to bring a strike out motion so that it is taken off the registry if they make out their case.09:52:002293Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I thank the minister. If you were a company that had a number of very well paid lawyers employed by you, would you not be looking very carefully through any application, through any people, no matter how poorly resourced, to find out the technical fault under which you could strike out their claim? Would not that be the easiest way of dealing with a native title claim?09:52:002293Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—It is a fundamental feature of our legal system, with respect to every area of the law, that parties have a right to come to the court and apply to that court to have an action or a claim struck out. All we are doing is replicating exactly the legal procedures that apply in every field of legal endeavour. These are common law claims within our common law system, and it should be open to any party to come before the court and seek to have a claim struck out.I would not have thought Aboriginal people would want their common law claims treated different to any other Australians' claims in any field of the law. Those who seek to have a claim struck out must make their case and must convince the court that the matter should not stay on the court's register. I do not want to comment on how that process is likely to work in practice, but it is exactly the same as the legal procedures that now apply in every field of the law.09:53:002294Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Can I just put a different spin on this perhaps: native title is not something that could be or is being given by parliament via legislation to indigenous Australians. What is being done is there is a belated recognition that native title is and always has existed in Australia's indigenous history. Therefore, the government is suggesting that, by a technicality, you can somehow strike out the ability for people to enjoy the native title that has always existed. You are suggesting that this is the kind of law you should apply for people to have their native title acknowledged, that technical knockouts are an appropriate mechanism for people trying to establish the native title they have always had, and that this is an appropriate way for this parliament to act. You will allow potentially highly resourced companies to go in and strike out native title if somebody has not got their application right in terms of knowing every element of every title within their claim area at the time they put in their application.Despite the slight amendment you made, we are in fact simply softening. Once again, this is not our preferred option. This is some element of humanity. Minister, for all the words of fairness, for all the words that `This is of benefit to indigenous Australians', how can you say that your government is acting with any understanding or in a fair or legitimate way in leaving the provisions the way you have put them?09:55:002294Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—As Senator Harradine has said repeatedly in this debate, we seem to have to go back each time to re-establish the basis of native title in the common law. The High Court has said that Aboriginal and Torres Strait Islander Australians can come to the courts of Australia and seek to establish their native title before that court, and the test the court must be satisfied of is that the claimants have maintained their traditional connection to the land claimed and that there has not been an act of extinguishment by a government in the meantime. The court system is thus made available to Aboriginal and Torres Strait Islanders to come and seek to have a determination that they hold native title, that they are the native title holders and that they hold certain rights to the land in question.It is part of our common law system. It is our common law that is recognising these traditional laws and customs, but that is the process by which these determinations are made. The common law will recognise native title once a determination has been made that X group holds X native title rights and interests on Y piece of land. Then the common law is triggered.As has always been part of our common law, when you make a common law claim, it is open to other parties to come before the courts to have such a claim struck out in the first instance. So that is all we replicate. The strike out motion must be based on an assertion, which the court would have to be satisfied of, that the application does not comply with the basic requirements regarding applications, and they are frankly fairly basic. The matters to be dealt with in respect of applications are not unduly onerous. Given that these claims can take years, cost the nation millions and millions of dollars and involve many other parties—as we have seen with Yorta Yorta—it is not unreasonable that some sort of basic application requirements are put in place and it is not at all unreasonable to give other parties the rights they have in every other field of legal endeavour, the right to come before the court and ask that it be struck out.If the claim meets all the application requirements of the act, then I would imagine a strike out motion is unlikely to be successful. Once claims get into the system, they do take years, they are taking years, they do cost millions of dollars and often, as we know, they cause considerable division within Aboriginal communities themselves. So it is not unreasonable to have this sort of process put in place and it is not unduly rigorous.09:58:002295Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I would argue that it is unreasonable that it is being done at the application stage. The determination stage will, of course, in the end, strike out those areas where claims will not be successful. What is unreasonable is that the government is raising the hurdle so far at the first stage.What is more, the intimidation that is associated with this kind of proposal means that people will lack information and will fail to put in areas of legitimate claim because of uncertainty. They will not be able to find out relevant information in whatever time they have available to put in their claim. There is often stress to put it in their claim in a certain time because of the implications of developments and the need to establish the process. That will mean, apart from anything else, that people will actually excise areas of legitimate claim. They will not be able to leave those for the period of determination. They will knock those out or be required in the end to knock those out in order to avoid being knocked out themselves by a strike out provision.This is in fact unreasonable. The determination stage would be the reasonable time for this to happen, and what you are suggesting is not fair or reasonable. We are asking for a softening of this; we are asking for some modicum of humanity and justice. I would be interested to know what Senator Harradine's response to the government's position is, because their position certainly is not in the least bit fair.10:00:002295Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I do not want to prolong this but it is essential that, for cases to be able to be dealt with in the courts of Australia, there be certain basic information about the claim before the court and before all the parties before the claim can be sensibly dealt with and the enormous resources involved to be devoted to the case. As I say, Yorta Yorta has cost, I think, $6 million already. I think it has taken three years and we still have not got to a determination, and there are hundreds and hundreds of other Australians whose livelihoods are affected by this claim. The respondents to these claims, who are other ordinary Australians, also have the right to know at least the basics of the claim—the area claimed, what has been claimed—that are set out in the application procedure.To suggest that strike-out cannot be done until the determination is a legal nonsense. Determinations are years down the track, as we have seen. Before you get to a determination, there is huge legal argument—as is the case with Yorta Yorta—about whether the claimants are the traditional owners, whether it affects other titleholders, whether there have been acts of extinguishment, et cetera. So it is simply to reflect standard and proper legal procedures to ensure that everybody's rights are respected and to ensure that claims do contain the basic information that is essential if they are to be dealt with before the courts of Australia.10:02:002295Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—If a claim went in in such a way that, say, one per cent of the claim might be challengeable under the strike-out provision, does that mean that that one per cent of the claim is struck out, or the entire claim—the other 99 per cent of the claim?10:02:002295Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—You cannot apply percentages to this. The question is whether it complies with the requirements in the act for the making of applications. As I say, these are not onerous requirements; they are not like the registration test. We have amended this and provided mechanisms by which claims can be amended without being struck out; the claim can be amended. If a claim goes through this process and is nevertheless struck out, of course the claim can be redrawn and resubmitted to the court in due course.10:03:002295Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I have been listening carefully to the debate. There seems to be one thing that we are missing in all of this. It is that until the Mabo and the Wik decisions there was no basis for native title in this country. But the High Court has said quite clearly that the doctrine of terra nullius is itself now dead. This means that we have 210 years of history during which we have been operating on a doctrine which no longer applies. So I have to say to the minister: it is just not possible to re-establish native title after 210 years and expect that somehow or other we are going to say, `Well, really, that doctrine still exists and we are going to make it as hard as possible for native title to be established.'The problem that we are trying to put to the minister is that we are in an entirely new era, that we now have to take account of native title, and that it is no longer possible to say that native title somehow or other has to have every possible hurdle put in front of it before we can even get to the stage of determining it.I know it is costing a lot of money and time, but that is the consequence of the High Court finally saying, `No longer can we ignore native title.' It just does not convince me to continually say it is costing a lot of money and time, et cetera. Of course it is; it is because of the 210 years of history that we allowed to happen before we corrected something. It is just impossible to argue on that basis that somehow or other we have to make it as smooth as possible for native title really to be suppressed. That is the effect of this. That is the effect of saying that `an application for determination of native title' et cetera.I want to ask the minister if he could give me an argument as to why the words `as far as is reasonably practicable' are not acceptable to the government. It seems to me that that, as Senator Margetts has said, puts a human face on what otherwise seems to be a determination to make it as difficult as possible. I do not accept the argument about the costs and the time and all the rest of it. That is a consequence of our history, that we have taken this long to fix the whole thing up. Of course it is going to be difficult. Did anyone expect anything different? We are trying to fix up an injustice that has gone on for 200 years. So that argument does not convince me. But if the minister could tell me why the words `as far as is reasonably practicable' are not acceptable to the government, then I might understand what it is that the government is arguing.10:07:002296Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I thought that we all approached this debate in a spirit of seeking reconciliation, coexistence and goodwill.DX5MARGETTSSenator Margetts—What! You must be joking!JX4Minchin, Sen NickSenator MINCHIN—Well, native title does require reconciliation and goodwill on all sides because we have accepted a system of common law property rights available to just one group of people that now applies across the board after 200 years of development where that was not the premise.I thought that Aboriginal groups had made it clear that they are not seeking to claim native title where it has been extinguished; in other words, where people have been granted exclusive possession or freehold. In many cases, as I said, that includes Aboriginal people. You know very well that in rural Australia one of the things that is causing community division, hardship and distress is native title claims for exclusive possession. Many of the claims are for exclusive possession, and that is their right, but where such a claim lodges on the kitchen table of a family with a pastoral lease, it inevitably causes distress. In many cases, this is not intended; the claims cover vast areas and everything inside it is claimed.We are trying to ensure a system whereby native title properly can be claimed where native title may have survived; that such a native title claim can be dealt with efficiently, effectively and fairly by the courts of Australia; and, where native title is proved, that a determination can be made. To make this system work, you have to try to avoid unnecessary conflict on the ground. One of the most important ways of doing that is to ensure that claims do not include areas of land—mostly inadvertently—that cover other people's freehold or exclusive possession leases. That is why we say that an application should not cover a previous exclusive posses sion area. But we have made it as easy as possible for applications to be amended in the spirit in which I take the statements by Aboriginal people—that they do not want to claim other people's freehold, and that those claims can be amended to excise those areas, which are often tiny. Some of the Queensland claims are huge. We are often talking about only small areas that would need to be excised to meet these requirements, and there is a very simple procedure to enable that to occur.The problem with 196 is that it allows into the system applications that cover areas where native title has been extinguished and, therefore, all that goes with that—thus roping into the claim and the court process people who occupy land where native title has been extinguished, who have freehold, et cetera, and the legal argument over that—rather than ensuring that the resources of all parties to the claim and of the courts are focused on the areas of the claim where native title can have survived. We think it is important that claims not include such areas; we are making it very easy for claims to be amended, without dropping out of the system, to ensure that they do not.10:11:002297Brown, Sen BobSenator BROWNQD4TASAG00—I cannot let that go by without commenting on the pejorative language that the minister used. He said earlier that it is our common law which is recognising native title, as if some magnanimity has arrived suddenly, by which we are creating a gift for the indigenous people. Minister, you are wrong on that; you have a blind spot on that. You are not accepting that, for 200 years, common law rights existed but were denied by people like you in parliaments, in places of authority, both colonial and post-colonial, when the indigenous people had that right but they were denied that right.Now the minister talks about the hardship or distress that is being caused in the community by indigenous people having that common right recognised, even though in a very truncated form. But he talks about it as if the hardship and distress is something that can be visited only upon members of the white community. It is as if, for the indigenous people out there, there is no hardship and distress involved in this; that all they are doing is sending in paper applications to get recognition of their land. I submit that he is totally wrong. The problem is that blind spot, that inability to recognise that it is not only hardship and distress for the indigenous people, it is divestment. It is a horrific history of recent generations who are longing to get recognition, not of a new attachment to the land but of their existing and continuing attachment to the land, which was there in common law all the way through but which was seized and broken by force, causing great hardship. That is the blind spot—the bigotry of the idea that says, `This is one-sided potential suffering that's going to occur here.' The follow-on from that is `Therefore, we'd better tighten down—we'd better screw down—the provisions to make sure that fewer and fewer applications from the indigenous people will be successful.' It is a wrong way of thinking.10:12:002297Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I am not sure I really got an answer to the question I asked before: could the government indicate why the words `as far as is reasonably practicable' are not acceptable? I have another question, but I guess it is really a rhetorical question: has the government or anyone ever calculated, over and against the cost that we are now seeing in terms of court cases, et cetera, the cost to Aboriginal people of all that has happened in the 200 years of white settlement? This includes the cost of the dispossession of their land; the cost of the loss of culture and language; the cost of losing their children; the cost of the fact that Aboriginal people have been almost destroyed by what most people quite legitimately would call an act of genocide over the 200 years. Quite clearly, when we talk about court costs, we have to put alongside those court costs the cost to Aboriginal people of our history. When you do that, the court costs pale into insignificance in terms of all that Aboriginal people have paid for the history of white settlement in this country.That is why I continue to press the question as to why the government would not accept the words `as far as is reasonably practicable'. I do have an answer from the minister on that: he does not feel that those words advance what the government is trying to achieve. I believe that they are a minimum addition to the government's proposal at this point that would, somehow or other, as Senator Margetts has quite rightly said, at least allow for some humanity in the application of this measure.10:16:002298Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I say to Senator Woodley that I thought I had answered the question as to why the words could not be accepted by the government. No-one on this side underestimates the enormous impact on Aboriginal society of European settlement. Obviously, it has been massive and destructive. But you have to look at what has occurred since. In response to that, governments, many of which have been of my persuasion, have given to Aboriginal people enormous areas of land. They now own or control 15 per cent of Australia. They now own or control an area the size of New South Wales, Victoria, Tasmania and the ACT.That is why we set up the indigenous land fund—because we do acknowledge that connection to the land, that need for land, the need for some reparation. So we supported the $1.3 billion land fund. My government is putting in $120 million a year to build that fund to $1.3 billion, so that it will enable Aboriginal people to buy $45 million worth of land every year. There was a general recognition that the High Court, if you have read the judgment, understood that, simply as a function of 200 years of development, it was not going to be easy for Aboriginal people to establish their native title. That is why the government set up the indigenous land fund. That is why we support it. That is why governments in the past have given enormous areas of land to Aboriginal people.We go forward on the basis—I would hope, together—that, yes, there is native title, but we do have a land fund. We do have land already in Aboriginal hands. At the same time, our energies are devoted to remedying the significant social problems which Aboriginal people have. I hope you accept our good faith in that.10:18:002298Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—Minister, I know you are trying very hard and I do accept your answer, but I say to you that language is very important. One of the problems in this debate continually—I have seen this in my 36 years of connection with Aboriginal people—is this language of `given'—that we are giving to them something or other. The only thing we can do is return to them something of what we have stolen.Let me remind you of my second reading contribution when I pointed out that in Queensland nothing was given to Aboriginal people. I pointed out how, over generations, successive Queensland governments stole from Aboriginal wages in order to return some of that money to Aboriginal communities. Then, in those communities, they stole the money again, because of the starvation, the disease, et cetera which was perpetrated on those communities when the people were brought artificially from all over the state and dumped in what could only be termed concentration camps in the early days.Minister, I accept that you are answering my question, but I say to you that there seems to be a gulf between us in terms of language. When you say governments have `given', that is the point at which we really have a vast difference in our understanding of what we are on about.10:19:002298Bolkus, Sen NickSenator BOLKUSXE4SAALP00—Senator Minchin said, in the context of his previous contribution, that `we supported the indigenous land fund'. Let me remind the committee that the present government, then in opposition, voted against that fund.The language of `given' is something which really is offensive to indigenous Australians, and should be; not just because a lot has been taken away, but because, if you look at the history leading up to where we are now in this bill, if you look at Koowarta and Mabo, this is what started the process of the law whereby conservative governments did not just take away; they took away in a discriminatory manner. It was up to the High Court to ensure some protection, and they did so. I hope that in the future the High Court will continue to do so. Let us put on the record the fact that the history of Australia has been to progressively eat away at those rights. We did not just steal their land; we stole their kids. Let us keep that in mind as well.I suggest that the points have been made in this part of the debate. We are, in a sense, going around in circles. Some of the language has not been helpful. The basic point is that we on this side have a concern about what is happening with the procedural aspects of this bill. People are being denied the flexibility and, through that, the capacity to pursue legitimate claims. As a consequence, they will go outside the Native Title Act. They will go to the common law and we will have another generation of cases. Having said that, it might be an appropriate time to put some of these matters to a vote because we are obviously not going to persuade the government.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Hogg)—The question is that amendments 184 and 269 moved by Senator Woodley be agreed to.Question resolved in the negative.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—The next question is that amendment 196 moved by Senator Margetts be agreed to. Question put.10:26:00The committee divided. (The Temporary Chairman—Senator J. Hogg)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.Forshaw, M. G. Hogg, J.Lees, M. H. 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.Woodley, J.33Abetz, E. Alston, R. K. R.Boswell, R. L. D. Brownhill, D. G. C.Calvert, P. H. *Campbell, I. G.Chapman, H. G. P. Colston, M. A.Coonan, H. Crane, W.Ellison, C. Ferguson, A. B.Ferris, J. Gibson, B. F.Harradine, B. Heffernan, W.Herron, J. Kemp, R.Lightfoot, P. R. Macdonald, I.Macdonald, S. MacGibbon, D. J.Minchin, N. H. Newman, J. M.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.Gibbs, B. McGauran, J. J. J.Cooney, B. Parer, W. R.Lundy, K. O'Chee, W. G.West, S. M. Hill, R. M.Faulkner, J. P. Eggleston, A.* 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 negative.10:30:002299Harradine, Sen BrianSenator HARRADINE6H4TASIND00—In respect of Democrats-Greens (WA) amendments 80 to 83, I thought that when we held the next division we were going to have an immediate rerun of those.10:30:002299Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—Last night Senator Bolkus indicated that they would not be supporting 81, 82 and 83 but would support 80. Can I suggest that that matter be rolled over into the miscellaneous category and that miscellaneous matters be dealt with last. There could well be other matters that we do in the course of debate today that we consider should go into that category and we can decide that matter then, if that is agreeable.10:31:002299Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I would like to agree with the minister, which is an odd thing for me to do during this debate, on this point because I do not think it is appropriate. If there is a reason why the government are snapping their fingers and requiring the Senate to change its vote—and I guess that as usual this might happen—then we ought to debate it; it is not acceptable that we have a division without any debate. There needs to be a reason why the Senate is asked to, and the Senate does change its vote on these issues. Therefore, I do not think it is appropriate that we do it quietly without any debate.10:31:002300Bolkus, Sen NickSenator BOLKUSXE4SAALP00—Can I suggest that we have that debate when the matter does come up under miscellaneous?10:31:002300Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I agree. I thought this was a matter on which we all realised there was a foul-up in the count.DX5MARGETTSSenator Margetts—We did not all realise it. There may be other reasons.10:31:002300Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I move:(197) Schedule 2, item 19, page 155 (lines 16 to 24), omit paragraph (c).(198) Schedule 2, item 19, page 157 (lines 17 and 18) omit ", and may contain the details that would be permitted under paragraph (1)(c),".These are amendments in relation to information, et cetera, in relation to certain applications. The Greens (WA) believe that these will set up a hierarchy of what is a good application or what is a bad application depending on, amongst other things, level of physical connection. Therefore, we would like to strike out those as necessary or desirable in relation to the actual application.10:32:002300Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—We did debate this matter at some length last time and I do not want to prolong it. I re-emphasise that this does not in any way suggest that a physical connection is required for the determination of the native title claim. That is entirely a matter for the courts. This is an innocent provision in that sense. It is simply saying that applications may contain details.If the applicants think their claim would be strengthened by providing evidence of their physical connection to the land it is open to them to do so and also to provide evidence of them having been prevented from gaining access to the land. The word is `may', not `must'. There is no prejudice to a claim that does not contain these details. It simply makes it clear that an application may, if the applicant so chooses, contain such information either of connection or of being prevented from gaining physical access.10:33:002300Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I do not know that we will go for a vote on this, but the opposition does support these amendments. They are in line with amendments that we moved during the previous debate.Amendments not agreed to.10:34:002300Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I move:(194) Schedule 2, item 19, page 151 (table, column 3 of first item), omit paragraph (1) and Note 1, substitute "A member or members of the native title claim group authorised by that group; or".(199) Schedule 2, item 19, page 157 (after line 21), at the end of section 62, add: (4) However, if an application does not include a claim for a determination of native title, the information may be limited to information about the time at which the act giving rise to the claim for compensation took place. (5) A native title determination application may also seek compensation in relation to any act and, if it does, may specify details of the act. (6) A claimant application may seek compensation in addition to, or as an alternative to, a determination of native title. (7) A claimant application may seek compensation in relation to an area within the boundaries of the area claimed in relation to which it is acknowledged that native title has been extinguished.62AA Claims intended to be included in Register (1) If an applicant intends that a claim be included in the Register of Native Title Claims, the applicant: (a) may include a statement to that effect in the application; or (b) may send a copy of the application to the Registrar with a written statement to that effect. (2) The application may be accompanied by a certificate executed by the representative body or bodies for the area or areas covered by the application in accordance with their certification functions (see section 203BE).Overlapping representative body areas (3) Subsection (2) does not require certification by a particular representative Aboriginal/Torres Strait Islander body that could certify the application in performing its functions if: (a) the application has been certified by another representative Aboriginal Torres/Strait Islander body whose area includes all of the area of land or waters, to which the application relates, that is within the first-mentioned body's area; or (b) the application has been certified by 2 or more other representative Aboriginal/Torres Strait Islander bodies whose areas, when combined, include all of the area of land or waters, to which the application relates, that is within the first-mentioned body's area. (4) In this section: area , in relation to a representative Aboriginal/Torres Strait Islander body, means the area in relation to which the body has been determined to be a representative Aboriginal/Torres Strait Islander body.(200) Schedule 2, item 19, page 157 (after line 28), after section 62A, insert:62B Rules about authorisations (1) An applicant's authorisation to make a claim cannot be withdrawn after the claim is made without leave of the Federal Court. (2) In considering an application for leave to withdraw a claim, the Court must consider whether the matter can properly be dealt with by amending the native title claim group to exclude those members who wish to withdraw the authority. (3) The Court must not grant leave to withdraw the authority of an applicant if doing so would cause significant prejudice to the applicant or other members of the native title claim group. (4) An applicant must not, without further authorisation: (a) withdraw a claim; or (b) accept a settlement involving substantially less than the rights and interests, or the area, claimed; or (c) accept a settlement involving or requiring: (i) the surrender of native title rights and interests; or (ii) the exclusion of members of the native title claim group. Note: Agreements to settle are dealt with in section 86F.(201) Schedule 2, item 19, page 157 (after line 29), insert: (1) If an applicant for a determination of native title does not seek to have the claim registered, the application must include a statement to that effect.(202) Schedule 2, item 19, page 157 (line 30), after "section 61", insert "that does not contain such a statement".(203) Schedule 2, item 19, page 158 (after line 4), at the end of section 63, add: (2) If an application that has not been certified by a representative body is made in respect of particular land or waters and, before the application was made, a notice was given under section 29 in relation to an act affecting any of the land or waters in the area covered by the application, the applicant may: (a) give a copy of the application to the Registrar together with a request that the Registrar consider separately the registration of the application in relation to the land or waters to which the notice under section 29 applies; and (b) give to the Registrar such additional or separate information as relates to the land or waters to which the notice under section 29 applies.(204) Schedule 2, item 19, page 158 (lines 6 to 18), omit subsections (1) and (2), substitute: (1) An application may be amended in any way before registration, or at any time with leave of the Federal Court. (2) If the effect of the amendment is to vary, in a material respect, the identification of: (a) the area covered; or (b) the native title claim group; or (c) the native title rights or interests the subject of the claim;the amendment must be authorised by the native title claim group. (2A) Authority can be granted for the purposes of amending a claim within a reasonable time after the amendment is made and the grant of the authority is not a prerequisite to the amendment or to the registration of a claim as amended. (2B) A grant of authority cannot be withdrawn once it is acted upon by the making of an amendment of an application.(205) Schedule 2, item 19, page 159 (after line 12), at the end of section 64, add: Note: A change in the area covered requires further notification by the Registrar, see section 66A.(206) Schedule 2, item 19, page 159 (after line 26), after subsection (2), insert:Copies to representative bodies (2A) The Registrar must, as soon as is reasonably practicable, give the representative bodies for the area covered by the application a copy of: (a) the application; and (b) any other documents that the Registrar of the Federal Court gives the Native Title Registrar under section 63 in relation to the application.(207) Schedule 2, item 19, page 161 (line 15), after "claimant application", insert "that is not certified by a representative body under section 203BE (except where the applicant does not seek registration of the claim)".(210) Schedule 2, item 19, page 164 (after line 16), after section 66A, insert:66B Replacing an applicant (1) If a claim has been lodged with the Federal Court, any member of the native title claim group may apply to the Court for an order substituting that person or another member of the native title claim group as the applicant on the ground that: (a) the applicant is not able adequately to represent the interests of the native title claim group; or (b) authority granted to the applicant to make and prosecute the claim has been withdrawn; or (c) the applicant has acted contrary to the terms of authority granted for the lodgment and prosecution of the claim. (2) The Court may order the replacement of the applicant if it is satisfied that the ground for the application is established. (3) If the Court permits replacement of the applicant under this section, the Court may direct the Registrar to amend the claim (if it is on the Register) accordingly.(211) Schedule 2, item 19, page 164 (line 20), omit "must", substitute "may".The position of the Senate is becoming quite clear on these issues. We have already had voted down what we believe is one of the most important issues in this section, and to save the Senate's time I will put amendments 194, 199 to 207, 210 and 211 together. Amendment 194 substitutes the section with a member or members of the native title claim group authorised by that group. We believe that makes that section more reasonable.Amendment 199 allows combined applications for a determination and for compensation in respect of areas within the boundaries of the area claimed of native title or in the alternative. An application to be registered may be certified by a representative body. Amendment 200 improves the workability by allowing replacement of the authorised claimant. Amendments 201 and 202 ensure that claims for a determination only do not have to be considered for registration.Regarding amendment 203, if a section 29 notice is served the applicant may seek registration in respect of the area covered by the notice. Under amendment 204, application may be amended in any way but only if authorised by the group, so nobody else can force them to do that. Amendment 205 is a minor consequential amendment. Amendment 207 is a consequential amendment to ensure that claims for a determination only do not have to be considered for registration. Amendment 210 allows substitution of the applicant. Amendment 211 leaves the courts some flexibility in deciding whether to amalgamate overlapping claims.These are about workability. Funnily enough, nearly all of the so-called workability provisions in this bill are about removing rights. These are amendments that try to work on enabling indigenous Australians to establish their claims. I commend them to the Senate. 10:36:002303Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—We do not accept these amendments. They do in a sense cut across amendments already moved by the government to address issues raised by the Greens and we think they adequately address them.10:36:002303Bolkus, Sen NickSenator BOLKUSXE4SAALP00—These amendments are in line with the amendments the opposition moved last time which were not successful. We still continue to support the principles and the amendments.Amendments not agreed to.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Is it the wish of the committee we now move to 16, claims process and sunset clause? There being no objection, we shall do so.10:37:002303Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—As usual, I will commence by addressing the government amendments under this particular block. There are a few government amendments, 61 to 65, and I would like to formally move them and speak to them. I move:Claims process and sunset clause(61) Schedule 2, item 3, page 147 (lines 13 to 15), omit subsection (1A), substitute:Time limit for applications (1A) No application is allowed to be made under paragraph (1)(a) in relation to an area later than 6 years after: (a) if neither paragraph (b) nor paragraph (c) applies—the commencement of this subsection; or (b) if section 47A or 47B would apply to the whole of the area covered by the application—the earliest time at which it could reasonably be known that an application in relation to the area could be made under either of those sections; or (c) if section 47 would apply to the whole of the area covered by the application—the later of: (i) the commencement of this subsection; or (ii) the earliest time at which it could reasonably be known that an application in relation to the area could be made under that section. (62) Schedule 2, item 20, page 172 (line 27), at the end of subsection (5), add ", if the Court is satisfied that the person's interests may be affected by a determination in the proceedings".(63) Schedule 2, item 20, page 172 (after line 27), after subsection (5), insert:Persons wanting to exercise public right of access or use (5A) If: (a) a person wants to become a party to the proceedings; and (b) the Federal Court is satisfied that the person's interests may be affected by a determination in the proceedings merely because the person has a public right of access over, or use of, any of the area covered by the application; the Court: (c) may make appropriate orders to ensure that the person's interests are properly represented in the proceedings; but (d) need not allow more than one such person to become a party to the proceedings in relation to each area covered by such a public right of access or use.(64) Schedule 2, item 20, page 173 (after line 12), at the end of section 84, add:Court to consider dismissing parties (9) The Federal Court is to consider making an order under subsection (8) in respect of a person who is a party to the proceedings if the Court is satisfied that: (a) the following apply: (i) the person's interests may be affected by a determination in the proceedings merely because the person has a public right of access over, or use of, any of the area covered by the application; and (ii) the person's interests are properly represented in the proceedings by another party; or (b) the person never had, or no longer has, interests that may be affected by a determination in the proceedings.(65) Schedule 2, item 20, page 174 (after line 24), at the end of subsection 84C(1), add:Note: The main application may still be amended even after a strike-out application is filed.Government amendment 61 modifies the sunset clause for native title claims in order to take account of native title determination applications that are covered by sections 47, 47A or 47B, which allow certain extinguishing acts to be ignored in special circumstances.The sunset period will continue to be six years, but the time from which it starts to run will vary, depending upon the kind of application involved. In the case of an application which only covers an area to which 47A or 47B would apply, the six years starts to run from when it could reasonably be known that an application could be made under either one of those sections. In the case of an application that only covers an area of land to which 47 would apply, the six years starts to run from either the commencement of subsection 13(1)A or from when it could reasonably be known that an application could be made under section 47, whichever occurs later. In other words, the six years does not commence until those conditions are met.Government amendments 62, 63 and 64 deal with who may be parties to native title proceedings before the Federal Court. These amendments are aimed at streamlining the court's processes for determining native title claims by rationalising the number of parties to native title proceedings.Government amendment 65 inserts a note to subsection 84(C)1 which deals with the making of strike-out applications to the Federal Court. The amendment does not alter the Federal Court's strike-out powers. It simply makes it clear that a native title determination application may be amended, even if a strike-out application has been made in relation to that application. Claimants who have made an application that is the subject of a strike-out motion should be encouraged to amend their application as soon as possible so that it does comply with the act, and avoid the costs and delays in having the Federal Court hear the strike-out motion. I think that amendment is relevant to our previous discussion. I commend those amendments.10:39:002304Bolkus, Sen NickSenator BOLKUSXE4SAALP00—This is an area where the whole question of workability and certainty is important and it is one where the government has dropped the ball. We have to work on the basis that native title pre-exists the Native Title Act. To the extent that the government does not accommodate legitimate interests for native title or unfairly denies them access, there will be uncertainty. To the extent, then, that the government does not allow for complementary interests to be pursued under the act, those interests will go outside the act.We think, as we thought last time, that the government's proposals were unnecessarily restrictive in the way that the claims process can be pursued. I will go to the sunset clause aspects of it later. In respect of the non-sunset clause aspects of this debate, and the question of parties, government amendments—No. 62, for instance—accommodate the concerns that opposition 249 raised when it was accepted by the Senate last year but rejected by the House of Representatives. Amendment 249 sought to restrict non-native title parties who could join a native title application to those who actually held an interest in relation to the land or waters concerned, but it left open the possibility of persons seeking to be joined as parties on the basis of a public right of access only if the relevant minister was not already party to a proceeding.We were concerned not to have uncontrollable actions propelled by a whole range of persons who may not have a direct interest in the matter being party to them. Amendment 62 reinstates the position of the current Native Title Act which has been widely interpreted by the courts, but it is an improvement on the government's bill. We support 62. We support 63 and 64. Once again, opposition amendments on the same matter are reflected in these government amendments, especially in respect to 64 where the Federal Court has capacity to remove parties in those circumstances where those parties' interests are already being properly represented.In terms of the strike-out application, this amendment 65 is in response to opposition 251 which was rejected by the Senate. Discussions have led to 65 being in a form acceptable to us.Let me turn to the sunset clause. I said it last time and I say it again today: you cannot be serious in pursuing this clause in the bill. The native title bill is there to provide certain ty of process and certainty of time lines. That is why it is there. If we are going to be honest about it, everyone knows that if you wipe out the native title bill, you will still have native title claims. But what the parliament deemed it necessary to do, and what the parliament continues to deem it necessary to do, is to provide a proper process for those claims to be handled; a proper, workable process that gives you time lines of three months for expedited acts to be considered and six months in respect of negotiations. You cannot get that sort of time line under the common law. You probably could not get to base one in the Federal Court under the common law within a six month period. It is important that we maintain a process-driven piece of legislation to ensure that native title claims can be handled in the best processes possible.We say that what the government has put up are not the best processes possible but, in any event, they do provide certainty to the stakeholders this government pretends to represent. In those circumstances, to try to get rid of an act like this in six years is nonsensical, especially when one considers how long it takes for claims to be pursued under the common law. This whole process started with Koowarta in the early 1970s: 26 years later, we are still dealing with the common law; yet you are suggesting a six-year sunset clause—a rigid sunset clause which posed no due consideration to any evolving factors and matters. We say it is undesirable, unworkable and a con job on the public. We know why it is being moved—so backbenchers can go into their electorates and say, `We are going to put an end to this, we are going to fix it up so that in six years there will be no more claims.' Well that is a lot of bunkum and the government ought to be honest about it and should not be pursuing this clause.But what they do is come up with another one, based on times starting to run in relation to pastoral leases, vacant Crown leases and so on. The government's amendment replaces subsection 1A, and the net effect of the amendment is to narrow the operation of the sunset clause so the applications under sections 47, 47A and 47B must be brought within six years of the earliest date upon which they could be made; that is, time starts running in relation to pastoral leases and so on from the time that the pastoral lease is purchased by the native title holder, or at which it could reasonably be known that a reserve has been created, or land has become vacant Crown land.One of the things that amazes me about this initiative of the government's is that somehow it manages to ignore a very important body of case law, which Senator Harradine, Senator Margetts and I, probably more than anyone else in this place, would be aware of. When we started clocks running in migration legislation, the Federal Court and the High Court brought in, as they should have, the concepts of natural justice and admin law. Just because a piece of legislation says, `The clock starts running now', that does not mean it runs as determined, because it is subject to those common law principles of fairness, the admin law principles. We had clocks running, as we thought, with people in detention, but the courts held that, because of lack of notification, because of lack of knowledge, because of lack of due process, the clock that the legislation deemed to start did not start.Why is it that this lesson has not been learnt by the government? I for one learnt it. I am sure other senators in this place learnt it. What you have here is an unworkable clock system, an unworkable time running system. I would have thought that in that body corporate of the Attorney-General's Department there would have been some attention paid to those principles of common law that the highest courts in this country have attached to concepts of clocks running, time running and reasonable knowledge that that is the case.So it is an unworkable proposal that you put up here—unworkable because it does not factor in the requirements of the highest laws of this country. I do not think this clause will do anything but create another body of law piggybacked on the body of migration law, and I think it will provide more uncertainty, not just because of that factor but also because, when the courts determine that the clock is to start running, what infrastructure can we guarantee will be there to handle that? You want another generation of court cases? Hey, presto, you have given people one with this provision.So we say that if the government wants a bit of flexibility, recognising all those arguments I have put, let us be balanced in this, let us not predetermine now what the situation will be in six years time. Let us adopt a flexible mechanism. That is reflected in my amendment N33—an amendment which is an alternative to the removal of the sunset clause. The amendment says that the operative sunset clause will remain in the act but it will not apply unless there is a determination of each house of parliament approving a determination by the minister that it should apply.So somewhere down the track when the parliament has had an opportunity to consider how the law is operating and whether it needs to continue to operate, let both houses of parliament then make an assessment as to the desirability of the law continuing. That gives you a bit of flexibility and a flexibility that should be important in your considerations. As we say on this side, this is very much a shame debate, but to accommodate some of the government's concerns—as this side of the debate seems to be doing on every particular point—let us give some due consideration to this model, a model which allows the parliament a role in the process, a role in the determination as to whether the Native Title Act still needs to continue.10:49:002306Brown, Sen BobSenator BROWNQD4TASAG00—I wonder what the reaction would be if what was being moved here was not a guillotine on the rights of indigenous people but one on the rights of leaseholders around the country. I wonder what the reaction would be if the government were proposing, for example, in a more conciliatory direction, that all leaseholders should sort out an agreement in the future with indigenous claimants and that those who have not done so within six years would lose their lease entitlements. That is the reverse to this. This is saying, `If a native title claim has not been acknowledged within the next six years and arrangements made as to how that is going to work in relation to leaseholders, the lease is null and void.' There would be pandemonium. People would be horror-struck at the idea that such summary injustice could be dealt out. But that is what the government is doing to the indigenous people here. It is saying, `If the claim has not been made within six years, bang, down comes the guillotine on all your rights forever.' As Senator Bolkus says, it ignores the common law right that exists.We had Senator Minchin saying a while ago, `It is our common law'—as if it is something that belongs to the white community in Australia—`which is recognising native title.' Nothing of the sort. It is common law recognising that it was wrong not to have acknowledged native title over the last 200 years. But native title always existed. In Senator Minchin's words, we have got to the point where the government says, `Our common law is recognising native title', and it sees this not as a recognition which is now part of the justice of this country but simply as a window of opportunity. And you slam shut the window six years down the line and go back to the situation that has always been there of denying the common law rights of the indigenous people. What an extraordinary thing to do. Senator Minchin says, `We are giving land back to the indigenous people', totally ignoring the injustice of the whole thinking behind that—that there is something to give back, when in fact the indigenous people have that native title and it has been there all the time. It is not only extraordinary; it is patronising.The sad thing about it is that there is a mental block involved. There is a simple mental incapacity to understand the injustice that is involved in that language. As Senator Woodley said, language means a lot, but behind language is a course of thinking. The extraordinary thing is that the government here is saying, essentially, `We are going to revert back to where we were before Mabo. We are going to bring down the guillotine and cut off the right of indigenous people to have recognised that they have an ongoing relationship with the land.' That is totally unjust.10:53:002306Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—What we are dealing with here is the claims process and the sunset clause. I guess we are all catching up to a certain extent, but it actually came as a bit of shock to me when I realised that the opposition's N33 is suggesting that the Labor Party, after all that has been said to them by ANTA and by the National Indigenous Working Group, has an amendment which accedes to a sunset clause. After all that has been said over time and all the nice words, the Labor Party is saying that they are agreeing to a sunset clause.Of course, the Democrats-Greens (WA) amendment 190 is the same as the opposition amendments. I recognise that, but here we have almost a guarantee that, if there is a change of government, there is nothing that would indicate that Labor would remove a sunset clause. It is not good enough to say, `We will have to put it through both houses of parliament.' What are we going to get at the moment on Aboriginal issues? Who is going to guarantee justice for Aboriginal people in both houses of the parliament at the moment, given the current votes on these issues?I will not be moving all of the amendments that are down for the Greens (WA) and Democrats in this section. The position of the Senate is becoming quite clear in relation to many of these issues, but there are some groups of amendments that I will be moving. Amendments 192 and 333 are to knock out the nasty areas which, in fact, Senator Harradine supported and helped the government get through last time—that is, a sunset clause on compensation—which is hard to understand.Our amendment 213 is to omit section 82, and that is in relation to the Federal Court's way of operating: it will allow it to take into consideration cultural and customary concerns. We know that this is very important. We have had a number of debates about the importance of these issues. The word `Hindmarsh' should spring to mind as to why is it so important that we do not stop the Federal Court from being able to take these issues into consideration. Currently the bill does not enable the Federal Court to do that any more than with any other claimant. That means that, if pastoral leaseholders or miners do not have cultural issues in relation to families or spiritual connection, then the court will find it difficult, if not impossible, to take those issues into consideration for native title holders, and that, of course, is ridiculous.Amendment 222, which is to oppose item 25, does a similar thing in relation to the National Native Title Tribunal: not to force them, but to allow them to take into consideration traditional cultural and customary concerns. Our amendment 222A to oppose item 26A is in relation to the area we debated last time where the government has decided, just like that, that the head of the National Native Title Tribunal no longer has to be a judge.These are the issues. We are not going to remove the rest because it is quite clear what the pattern has become, but it is important for us to move on these particular areas. What we are seeing today seems to be a product of the Queensland election, just as what we saw in the past in relation to Hindmarsh was a product of a South Australian election. That is a very sad way to be making decisions in relation to basic justice for indigenous Australians.10:57:002307Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I will try not to repeat what Senator Margetts and Senator Bolkus have said, but I probably will overlap to a certain extent. I do want to make a couple of comments, and this is the appropriate place to do it. We are dealing with the claims process and the sunset clause. The claims process sets up the machinery in which the Native Title Act facilitates the claiming and later the determination of native title. It could rightly be called the gatekeeper provisions of native title. In part, the government amendments put in place what have come to be called the Brandy amendments. However, the amendments go too far. It is the view of the Australian Democrats that the inclusion of a sunset clause underlines exactly what this government really thinks about native title. I agree with Senator Bolkus when he says, `Are they really serious?'It is an astounding statement to say that indigenous people, after 210 years of dispossession, should effectively get their house in order and help us, in six years, to solve the problem we created. Is it because we somehow or other consider this whole Mabo and Wik issue, and all the rest of it, simply an annoyance and that it would be good if we could somehow or other get rid of it? As I said previously, we have 210 years of history to deal with and it is going to take some time. Six years to solve the problem! Senator Bolkus is right: are they really serious?The sunset clause represents a turning back of the clock. There would be some senators here who would remember the pictures of the abject poverty of indigenous people that shocked much of middle Australia and brought forth their support for the 1967 referendum. Because we became conscious of or shocked about the living conditions of our indigenous Australians, we voted that way overwhelmingly back in the mid-1960s.YE4BOSWELLSenator Boswell—I don't think so. I think it was because—HX5Woodley, Sen JohnSenator WOODLEY—You'll get your chance, Senator Boswell.YE4BOSWELLSenator Boswell—They put a suggestion.HX5Woodley, Sen JohnSenator WOODLEY—Has the government put a gag on you again? Senator Bolkus, if the government has done that, I certainly am on your side, and I will cut my speech short so that you can have your go. It is not fair for the government to do that to my friend Senator Boswell, even when I disagree with him. He should be allowed to speak.Black Australia became visible in the life of the nation back in the 1960s, particularly when it was focused in terms of that 1967 referendum. To a large extent that has been the hallmark of indigenous and non-indigenous Australians—a form of forced visibility. The Mabo decision, in legal terms at least, made Aboriginal and Torres Strait Islander people visible. That is what getting rid of terra nullius was about. After only five years in the sun, the Australian Democrats will not allow indigenous people to be sunsetted, enforceable by this government.I have a couple of comments on some of the other Democrats-Greens (WA) amendments, particularly those amendments which deal with working out cross claims. It is important to note here that it is possible for native title rights to be overlapping. For example, some native title rights may include the right to conduct ceremony and others may include the right to fish or camp. This empowers the Federal Court to assist in making determinations that will facilitate the necessary flexibility to ensure that justice can be effected. The Democrats, of course, will support these amendments.Another amendment deals with expanding the flexibility of the court to deal with overlapping claims. It deals with the complexity of overlapping claims which, in part, have been caused by catastrophic events such as stolen generations. In Queensland, the transportation of people for generations from one part of the state to another caused an incredibly complex mix of people, as did the forcing of people into communities. Most communities have an incredible complexity of ancestry.Last time when I made this speech I read the comments of Professor Marcia Langton. While I will not repeat all of what she said, her conclusion, I think, in speaking before the Joint Committee on Native Title in Darwin, is very important. In speaking about this incredible mix of people and of how, as people begin to try to trace their ancestry, they often find that they are related to a number of groups rather than being able simply to say, `I belong to this or that particular group', she said that, in the end:The customary constitution of the group is a matter for the group, and it must always be. One cannot define culture. Thousands of anthropologists have tried to, unsuccessfully.I hope that the Greens (WA) and Democrat amendments, and also equivalent amendments by other parties, will be supported.11:04:002308Harradine, Sen BrianSenator HARRADINE6H4TASIND00—Thank you for the opportunity to speak in this committee stage. I would like to say that I agree with much that has been said around the chamber, but I cannot see why we cannot support, at least at this stage, amendment 61 that has been moved by the government because it ameliorates the position to some extent and makes certain definitions as to when the clock starts to run. I well recall the occasions to which Senator Bolkus referred in respect of the immigration matters. I was very closely associated with those and the questioning of the High Court as to when the clock was deemed to have started ticking down.I am prepared to support government amendment 61. I make it perfectly clear that I am not going to support the proposition that the clause be taken out, but I indicate that I will be supporting the proposition that is being put forward by Senator Bolkus in the event that the clause stands. He has put forward a proposition that both houses of parliament be involved prior to the minister making a determination that a particular application should be subject to 4A.I think that does bring the parliament back into the process and, in the final analysis, I hope that the government will accept that in the manner in which I believe Senator Bolkus put it forward. I think it was he who said that this was a response to the government's major concern, or one of the sticking points—namely, the sunset clause. I believe it is a reasonable attempt to meet the concerns of the government in respect of this matter.If it clarifies anything at all, I will be voting for government amendment 61, and I will be voting that the clause stand as printed, and then I will be supporting opposition amendment N33.11:07:002309Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I want to briefly comment on the generality of the sunset clause and on some of the comments made. I acknowledge the opposition from some parts of the chamber to this. From the government's point of view, we think that it is perfectly reasonable to propose that, six years from the date of this legislation becoming law, there be a sunset on further applications. That is against the backdrop of several factors. Firstly, after nearly four years of operation of the Native Title Act, nearly 750 claims have already been made. They cover over 50 per cent of Australia, so at least two-thirds of what we believe is the claimable area of Australia is already under claim. We are saying that those who have not yet made a claim have another six years in which to lodge an application with the Federal Court. That will make a total of 10 years, in the first four of which over half the country is under claim.We have to say time and time again that this does not in any way affect the common law right to make native title claims in the courts of Australia—as has, of course, been the case from the time of the Mabo decision itself. From that day forth, native title claimants who felt they held native title were able to come to the courts of Australia. It was not until a year and a half later that the Native Title Act was in existence. The situation that pertained from Mabo through to the end of 1993 will pertain for time immemorial. Native title claims, as a matter of common law, can be made forever. Against that backdrop, we do not think it is unreasonable to say to those claimants who have not yet made a claim—and, as I say, I do not know how many more there are likely to be—that we want you to make your application within that six-year time frame. You do not have to lodge the claim until the six years comes up in 2004. As long as your claim is lodged by then, your claim will be dealt with through the processes of the Native Title Act for as long as it takes. The claim will always be there on the register; the whole right to negotiate process or the procedural rights will all attach. The whole structure will continue because the six-year time limit on compensation claims does not start to run until the compensable act occurs, and that could be any number of years down the track.The whole structure will continue, contrary to what Senator Bolkus is suggesting: that somehow there will not be a structure there to deal with this. We anticipate that, even with this six-year sunset, the whole apparatus set up under the Native Title Act will continue for a very long time, and the right to make common law native title claims will continue absolutely forever and will not be affected by this process.We think it is reasonable, and we think the Australian people think it is perfectly reasonable, to say that we want those who wish to make their claims under the auspices of the Native Title Act to lodge their applications by April 2004. I make those comments in respect of Senator Brown's comments about wiping out rights. As I say, common law rights are not wiped out. The Native Title Act is a statutory creation and the statutory rights will continue for all claims lodged in that time frame. The whole structure continues.Senator Brown talked about leaseholders. Of course, leaseholders around Australia can have their rights taken away from them at any time by governments—and governments do that. Statutory rights—given, bought, whatever—held by leaseholders are probably taken away from them every day of the week by governments. There have been some very celebrated cases of that kind. On the one hand, no, we are not taking away common law rights to claim native title. On the other hand, to say that somehow native titleholders are being dealt with prejudicially is not correct. The fact is that, as a matter of law, the property rights of statutory titleholders are dealt with by the laws of this land, as they are in every other country.That is the backdrop to this. We think that opposition amendment N33, which is some sort of modification to this, is really no modification at all; it is just the removal of the sunset clause using different words. What is being proposed is that the minister would be required to make a determination in respect of every single application, that they would seek to have the sunset applied to that application and then get both houses to agree. We think that is something of a charade and we cannot support it.11:12:002310Brown, Sen BobSenator BROWNQD4TASAG00—I totally agree with Senator Margetts on this. What is happening here is that, whereas the Senate voted last time to throw this objectionable clause out, we are now facing a situation where the sands are shifting. Labor and Senator Harradine are coming up with a `leave it to the future' option, cutting the ground from under their stand of last December and conceding yet again more of the rights and hopes of indigenous people in this matter. They are setting up the guillotine to cut those rights off in six years time, as the government wants. Instead of dropping it with certainty in six years, they are saying, `Well, we're going to pull the guillotine rope, haul the guillotine blade to the top of the scaffold and set the rope on fire. We'll give parliament a bucket of water to throw in six years if it wants to stop it at the last minute.'As Senator Margetts has pointed out, what would happen in this place given the mood at the moment? Bang! Down comes the guillotine. Once again the Greens and the Democrats are standing firm in throwing out this sunset clause—this attempt to cut out the indigenous people's rights in the year 2004, while Labor and Senator Harradine concede to the government. That is what is happening here.For two centuries there has been a wall of denial of Aboriginal rights. Suddenly that denial has been removed. We thought that forever more indigenous people's rights would be recognised and processes would be available to them to have those rights recognised. But, `Not so,' says the government, `we're going to build that wall from the year 2004 into the future.' So we have a continuing wall of denial with a six-year window in the middle of it. That is the best that is being conceded here. We will return to the past in the year 2004.What Labor and Senator Harradine are saying is, `Oh, we will entertain that idea but we would like to put it off to till the year 2004 because we do not have the gumption to stand by our December decision now; we do not have the gumption to throw this out because it is objectionable and unfair to indigenous people.' It puts a date at which we go back to the past—pre-Mabo—and say that indigenous people then will not have the right, through these processes, to make application to have the claim to their land recognised. Senator Margetts says she is saddened by the process, and I know that she has chosen her words carefully there. I think it is pretty dastardly.11:15:002310Bolkus, Sen NickSenator BOLKUSXE4SAALP00—Being in the crossfire, there are two or three points that I need to make to Senator Minchin in respect to his concern as to the language of the suggested 1B where we say `in relation to an application'. It is exactly the language that is used in 1A, and the language in 1B is used to tie in with the language in 1A. So, if it is good enough for your sunset clause, it is good enough for the amendment that the opposition wishes to move for it. Your sunset clause applies to an application; ours also applies to an application.In respect of the other side of the debate, what is being put here is a continuing parliamentary oversight of the continuation of the Native Title Act. That is all that has been put up in this particular place. If a government can persuade both houses of parliament that there is no longer a need for the Native Title Act, then it is their obligation to do try to do that, and let us face it, they would have to be very persuasive to convince the Senate to that effect. There would have to be a good mounting body of evidence.Presuming there is a double dissolution, for instance, I suppose all psephologists reckon that the government's numbers will go down substantially in this place. So, we are not talking about abdicating the role of the parliament. We are basically reinforcing the fact that the parliament has a continuing interest in this. Let us also place on record in this context the point I started off with: native title preceded, co-exists, and will continue long after any law of this parliament tries to control it. I think it is important to place that on the record in the context of the reaction that we may have had from this side of the parliament.11:18:002311Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I am trying to work out what is going on, as a matter of fact, because the Senate was very clear last year that the sunset clause should go. There was no doubt about that. In fact, I think most commentators agree. As Senator Bolkus said before, `We did not really believe the government was serious.' For that reason, I do not even know why we are now considering some kind of fall-back position. I thought there was an absolutely firm position by all the opposition parties that the sunset clause should be opposed. It is of no benefit to the government, it introduces so many uncertainties, and why the government continues to press it is just beyond me. So it would seem to me that we should simply vote against item No. 3 so that the sunset clause will disappear. All of sudden we are discussing some fall-back position. That means that there must have been some significant shift that I do not know about since last year.I have to say that in 1997, when the final amended bill was voted on by this Senate, the Democrats and Greens voted against it, because it was nowhere near what indigenous people needed in order to pursue their rights in this country, so we voted against it. Yet, in some way or other, even that position, which was totally inadequate, which was a betrayal of Aboriginal people and their rights, now seems to be under some kind of doubt. At the very beginning of this debate, the Democrats and Greens tried to have the 1997 position established—if you remember, we sought a vote on that. Now I think we are beginning to understand why even that 1997 position was under some threat. I thought that was the starting point—a starting point that was totally inadequate, but at least a starting point for us to seek to improve on that position.But we are taking that 1997 position and eroding it. That is impossible. We cannot do that. In the name of justice and everything else—I am trying not to swear—I just cannot see how we can take the position that we arrived at in 1997 and in some way seek to erode that.I hope the opposition parties will oppose the sunset clause and we will not continue this process—that I am not aware of but that seems to be going on—where we have fall back positions from that very inadequate position that we started with when the Senate, not the Democrats or the Greens, passed the 1997 amended bill. I really am bemused at where we are going.11:22:002311Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—This is the most extraordinary situation. I know the Labor Party have said that if this bill is the same or close to the 1997 position they will consider voting for it. I do not see how they could. This is not close. I thought the 1997 position was totally iniquitous. This is not even close. This is buckets of extinguishment with loads of misunderstanding and extra injustice all lumped on top. All the promises made by the Labor Party and the public statements made by Senator Harradine do not mean a thing when we deal with these kinds of issues. We did support knocking out this clause in 1997. It was unjust then; it is unjust now.This situation is very similar to the one we faced with the threshold test, except the players have just changed. Instead of Senator Harradine presenting something which the Labor Party could appear to be forced to support and then make it look as though everything was okay and they had done something for Aboriginal people, now we are doing exactly the opposite. Here we have the Labor Party saying, `This is our compromise amendment,' and Senator Harradine saying, `Yes, this is good enough,' and therefore the Senate looks as though it has done something for Aboriginal people, when in fact all it has done is sell them down the toilet. This is a disgrace.Amendment N33 is a disgrace. It does nothing. It leaves the situation theoretically exactly like we have it now. It basically is not something that has ever been accepted by the various groups around Australia—the Australians for Native Title and Reconciliation or the National Indigenous Working Group—and I just wonder where the policy has come from within the Labor Party to sign up to something which is a sunset clause.I do not feel inclined to allow this injustice to take place, to allow people to take bows in the public arena and say, `Look what we've done for Aboriginal people. Okay, we've sold them out, but we could have sold them out worse.' Well, they are selling them out worse. Let us not pretend that this is not a massive sell out. Let us not even give it any dressing up. It is the Labor Party coming to a nice little arrangement and Senator Harradine and the government making a nice bit of theatre: `Yes, we'll say no in this House. It'll go to the House of Representatives and we'll touch our brow and say, "Yes, it's closer to our position. We've got a sunset clause, we'll accept it."' That is why everybody in this area of the chamber is so outraged.But guess what? We have not fallen for this. Indigenous people are not falling for this. It is not good enough. We are not giving the opposition the okay for them to do this in years to come. We are not giving you any indication if you get back into government that you can do the same and same and same again. How could I? After listening to the people who have pleaded with me to make sure that justice and fairness are part of this bill, how could I give you that ability to say, `We've looked in our conscience and this is what we've come up with'? No, I am sorry. This is not justice. The Labor Party could have said to Senator Harradine, `If you want to support this, you're on your own.' But, no, they have sold themselves down. They can do it. They can put their name to it, but I am not prepared to.11:27:002312Harradine, Sen BrianSenator HARRADINE6H4TASIND00—We have just heard Senator Margetts accuse the Labor Party and me of engaging in theatricals. The only people who have been engaging in theatricals in this particular debate have been Senator Brown and Senator Margetts. That is to the detriment of the indigenous peoples of Australia; indeed, it is to the detriment of all of the other stakeholders, the community in general and reconciliation. Unless there is legislation which is fair, reasonable, workable and indeed honourable, we are not going to have reconciliation in this country to the extent that we desire it.What we need is a workable situation. I voted against the sunset clause as it stood then, and that was the sunset clause that was included in the original Native Title Amendment Bill. Even the government believed that particular clause was inadequate, because its amendment 61 has specified the times at which the clock will start ticking. It has done this, recognising some of the points that have been made to the government by not only indigenous persons but also others who want to see a workable outcome.It is all very well for Senator Brown and Senator Margetts to carry on with their theatricals, but they have to have a look at what is workable. It is all very well for Senator Brown to carry on with his theatricals about the Senate now cutting down indigenous people's rights and cutting them off after the year 2004. That is an absolute nonsense. It shows, as I have said before in this debate, his complete ignorance of the basics of native title. I wish that, when he comes into this chamber, he would give a little bit of consideration to what he is saying. We all get very emotional about this matter, but what we have to do in this chamber is exercise our function of review of government legislation and stand up for the rights of individuals and, indeed, of the community at large. That is what I am trying to do. I believe that is what most honourable senators are trying to do. It is not that we are going to establish a wall of denial from the year 2004 against native title rights—not at all. As has been indicated to the chamber by others, these are procedural matters to try to establish procedures which can work to the benefit of the stakeholders, particularly to the benefit of the native title holders and claimants. That is why we have been laboriously going through this legislation, not only in December but also now. We are not going to, as Senator Brown said, turn back to the past pre-Mabo. Does anybody believe that? Does anybody here in this chamber, in the gallery or listening to the debate believe that? Of course they do not, because it is absolute nonsense.I would now like to bring to the notice of the chamber precisely what effect is being desired by opposition amendment N33. All right, the Prime Minister has said that one of his sticking points is the sunset clause. First of all, he has moved a bit away from where he was in December because the government's amendment is moving away from that. But I think we do have to take account of statements that emanate from the Prime Minister of Australia on behalf of the government and, if possible, amend provisions which would enable the government and others ultimately to live with the legislation and ensure that it is pursued vigorously on behalf of those whom we represent, particularly indigenous Australians. Let us see whether we can introduce those amendments. This is why I am going to support Senator Bolkus's amendment.Subsection 1A says that no application is allowed to be made under paragraph 1A later than six years after the commencement of this subsection. Then, of course, you have that amended by the government's amendment which ameliorates that even further. Senator Bolkus and the opposition's amendment is that subsection 1A does not apply in relation to an application for a determination of native title until each house of the parliament has approved the determination by the minister that it should apply. What is wrong with that? What is your objection to that?HX5WOODLEYSenator Woodley—Nobody else has to do that. No other person in this country has to establish their rights in that way.6H4Harradine, Sen BrianSenator HARRADINE—I am sorry, Senator Woodley, but we are not establishing native title rights. Those native title rights exist. We are not establishing them. Those native title holders, even under the government's proposals, have the right to seek determination that they are the genuine native title holders for those particular areas. We are not denying rights; they exist. What we do about it is irrelevant in that particular situation. They exist also for claims on the basis of the spiritual or customary association with the land as well. So those opportunities also exist.What we are dealing with here in this legislation are the procedures that will facilitate those matters. What Senator Bolkus is putting forward is that, in effect, the sunset clause will not operate unless the government of the day gets the approval of both houses of parliament. What is wrong with that? If they want their sunset clause, let them have their sunset clause, but let them realise that they have to get it through both houses of parliament at the end of the day.I think that is a very important feature. We have the parliament involved; we have the people involved; and it gives some sort of incentive to stakeholders to get applications in as soon as possible. I think that is a desirable feature. Again I reiterate: what is wrong with that? They have to get it through both houses of parliament and then they can have their sunset clause. Bear this in mind: we are reaching a very critical stage today and, if you are going along your line, you are definitely saying to everybody—the Aboriginal people in Australia and everybody else—`You've got no hope of getting this measure up.' You are really saying, `Let it go to a double dissolution,' let the government then bring their objectionable legislation to a joint house meeting; that will be carried and the original sunset clause will be carried, not what is being proposed by the committee at this stage.11:39:002314Brown, Sen BobSenator BROWNQD4TASAG00—Senator Harradine has just said it all: if they want a sunset clause, let them have a sunset clause. That is what this about. He puts an `if' or a `but' on it, but that is what this is about—it is a sell-out to the government. Who would have thought that Labor and Senator Harradine would be in here doing it again, this double-step whereby Senator Harradine first of all says to us, `Let's have the government amendment passed first up, then we'll get on with the Greens-Democrats amendment to get rid of the sunset clause.' Having got the government amendment passed, he says, `Well, the government's moved some direction; we've got to move some direction towards them.' That is, we will not be supporting the Greens-Democrats amendment to get rid of this sunset clause. That was his position four months ago. That is a position he is selling out now. That was Labor's position four months ago. That is one we are not going to see get through now.What is happening here is a repeat of the threshold test double-shuffle. What happens is that Labor comes in and says, `We'll support the stronger position, but then we'll see Senator Harradine support the government to get up the weak position.' That is, our weak position. That is what is going to happen. They will say, `We will go for the weaker position.' And if the Greens and Democrats do not support that, the government will prevail. It is the same thing as the other night. Is it going to happen with the right to negotiate? I suspect some sort of similar arrangement will be brought in—that is, an injunction to the Greens and Democrats that `If you don't go with us to a weaker position which gives the government the ability to entertain accepting this legislation from the Senate, then you are doing the wrong thing.'I am saying to Labor and to Senator Harradine: you are doing the wrong thing. You are aiding and abetting the government in getting what it wants. You are helping to turn this place into a den of thieves, because it is a matter of thieving the rights of indigenous people—bit by bit by bit. In this situation it is a matter of saying, `In six years, the guillotine drops on your rights.'It is all right to get up in this place and say, `Oh, the common law rights will still be there.' This legislation is to facilitate the application of the indigenous people to have recognition of their rights. What we are saying is that in six years time, remove the facility. I ask Senator Bolkus and Senator Harradine this: why can't you dispense with this now? Why be so gutless as to say, `Let's put it off to another set of parliamentarians three, four or five years down the line.' If you will not stand for it now, why should the indigenous people believe you are going to stand for it then? Let us be clear that what you are saying is, `Let's give the government what it wants'—as Senator Harradine said, `If they want their sunset clause, let them have it'—so you can help get the legislation through now with a caveat that says, `We'll revisit the potential for a sunset clause further down the line.'Whatever you might get up and say to try to justify this perfidy on your position of last December—6H4HARRADINESenator Harradine—Haven't you heard of a Clayton's sunset clause?QD4Brown, Sen BobSenator BROWN—Well, there we go—a `Clayton's sunset clause'. But what Senator Harradine does not like revealed in here is that it is on the altar of further concession to the government. What the government is getting out of this is not Clayton's material; it is real extinguishment. It is real buckets of extinguishment. The problem is that Labor and Senator Harradine are adding a further bucket or two, and it is a sell-out as far as that is concerned.I ask you again: why can you not stand on your position of last year? When Labor comes and votes for the Greens-Democrats amendment, you know that if Senator Harradine does not, the next thing that is going to happen is that their amendment N33 potentially will get support. You will expect us to support it. Then you will come out and say, `Oh, the Greens and Democrats did not support this perfectly reasonable alternative.' I put this to you: in the last 24 hours, the Indigenous Working Group has asked us to stand firm. This is not standing firm. You are listening to John Howard, not to the indigenous people. If you want us to drift in John Howard's direction, think again.11:44:002315Bolkus, Sen NickSenator BOLKUSXE4SAALP00—Senator Brown, if you are on a suicide kick, you should not be taking indigenous Australians with you. You have a responsibility not to play politics with this but to analyse the issue before us.In basic constitutional law, there is absolutely no way that this parliament now can entrench a provision to bind future parliaments. There is no way that we can adopt a position which, for instance, rejects the sunset clause forever and a day, because the next parliament—or in fact the next session of this parliament—if the government has the numbers, could overturn that position. We are not talking here about a situation where, were we to knock off the government's sunset clause, that position could bind future parliaments.Principle No. 1: there is absolutely no way that one parliament, one session of one parliament, can entrench a law as against review by the next session of the same parliament or the next parliament. That is the basic principle that should guide the committee here.DX5MARGETTSSenator Margetts—What about your responsibilities in your next parliament as well?XE4Bolkus, Sen NickSenator BOLKUS—In respect of our next parliament, we have a continuing commitment to the Native Title Act—a fair and balanced Native Title Act.Senator Margetts interjecting—XE4Bolkus, Sen NickSenator BOLKUS—I suggest to Senator Margetts that it has been a long debate and maybe she should calm down for a second and listen to this aspect of it. You cannot entrench against a future parliament. Our commitment is to a Native Title Act, a far more balanced one than this government's Native Title Act, and we do not support a sunset clause.DX5MARGETTSSenator Margetts—You are; you're voting for it.XE4Bolkus, Sen NickSenator BOLKUS—What we are saying to you is that, no matter how much you rant, rave and explode this morning, none of that will have any basis in constitutional law. So if this government were to get the numbers in the next parliament, they could override any position taken in this legislation today. You know that. That is exactly why we are here now amending the 1993 Native Title Act. Had we been able then to entrench the Native Title Act, you would not be able to amend it now. It is a very basic fundamental principle of law. If anyone was to understand that, they would understand that what we are doing with this amendment is making it very clear that, for a government to trigger in a sunset clause, it must have the numbers in both houses of the parliament. You do not have to be an Einstein to recognise that, if you have got the numbers in both houses of the parliament, you can actually amend the substantive law in any event.This provision provides that, once the two houses of the parliament decide to trigger the sunset clause, if they so do—and we will not be supporting that—there is a six-year period for the operation of that clause. If this government gets re-elected, they can amend that altogether, bring in a one- or two-year sunset clause or just write off the act altogether. Keep that in mind.We have heard the rhetoric and, once again, we get abused. It has been a real feature of the process this time. It is the difference between this one and the last process. But I say to the Democrats and Greens: keep in mind the legal framework in which we are working and also keep in mind the fact that this provision is one that does ensure that unless a government has the numbers in both houses, a sunset clause will not be triggered into effect. Let us get real.11:49:002315Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I listened very carefully to what Senator Bolkus said. Senator Bolkus, it is always true that whatever legislation we pass in this place can be amended. That is abso lutely true, but it is true of everything that we do. What I cannot understand is why we are even suggesting that there should be some kind of fall-back position.What is very clear to me is that, somewhere along the line, somehow or other, that principle that we all stood on—at least those on the opposition benches—in 1997 is about to be jettisoned. I do not understand why it is about to be jettisoned. No-one has given me any reasons that I am prepared to accept as to why we should jettison the 1997 position which, as I said, was nevertheless a position which was unacceptable to indigenous people.This is one of the so-called four sticking points for the government. I deliberately asked the minister the other day: if the RDA clause was attached to the Native Title Amendment Bill, would the government accept that? The minister very frankly answered me that, no, they would not. So quite clearly, the trigger for a double dissolution is already in place.When Senator Harradine says to me, `Do you want a double dissolution?', I say that that is not in my hands. The government has already indicated that the trigger is in place and whenever this goes back to the House of Representatives they will ensure that that trigger is there. So it is not an argument to say, `Do you want a double dissolution?' In any case, that is not in my hands. It is not something which I can determine; it is something which the government has to determine. But in terms of the trigger, the government has indicated under the RDA clause that that trigger is already there. It is just a matter of hours or days and the House of Representatives is going to put the trigger in place.That is not a reason to have a fall-back position: `Do you want a double dissolution election?' It has got nothing to do with it. That is already in train. If I am wrong, Senator Harradine, please correct me, but it seems to me that you are not going to vote for opposition amendment 223 and Greens- Democrat amendment 190, which is to knock out the sunset clause.I presume the ALP is going to vote for that in the knowledge that they will not lose it. Therefore, somewhere along the line, it seems that people have got together and decided—and, by the way, I was not part of that discussion—`We know what is going to happen so we have to put in place a fall back position. Then we will put the pressure on the Democrats and the Greens to accept something which is unacceptable.'It is very clear. There is a principle involved. Either we believe in a sunset clause or we do not believe in a sunset clause. If we do not believe in a sunset clause, let us not play around with all kinds of tricky amendments about whether or not it should go to the House of Representatives for a majority and then to the Senate for a majority but make a very clear decision—none of these games—to vote to get rid of the sunset clause. The minister is not engaged in this debate at all. The minister might help us. Can I ask the minister for his response to this ALP amendment.DX5MARGETTSSenator Margetts—He said he is not going to support it in this chamber, but he does not say what they are going to do in the other chamber.HX5Woodley, Sen JohnSenator WOODLEY—Can I appeal to the minister again. It would help us if you have some comments on that and if you could indicate what you are going to do in terms of the ALP amendment when we come to the vote. If the minister is able to that that would be helpful.11:54:002316Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—It is hard to get a word in in this debate when those opposite are arguing among themselves, but so be it. I have spoken on this issue. I have indicated the government's attitude to the ALP amendments. I have indicated that the government would not be supporting amendment N33 because we think it simply leaves the situation as it is in practice—that is, there would not be a sunset clause.To suggest that every time there is an application and the minister wants to the trigger the sunset he has to make that determination and then go to both houses of parliament and get both houses of parliament to agree to it is a process that we think is unlikely to lead to resolution. No government has ever had or, under current arrangements, is likely to have a majority in the Senate so we think in practice this clause will not give the government the sunset clause which it seeks and we will be opposing it.11:55:002317Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—What has been forgotten here is the impact that a sunset clause of any sort has on the people on the ground. We are going to have the government talking about how the courts are tied up. The reason the government will be talking about that is that people are going to be forced to make claims when they would otherwise not have had to put themselves through that expensive legal process if there did not seem to be anything happening on land which seemed to be a threat which required them to legally participate in such things as the right to negotiate.There are many groups around Australia that have told me that they generally keep an eye on their traditional lands and it is no accident that they are part of a process when there is development looming because they need to be concerned and need to be consulted. What is being forgotten is the whole concept of a sunset clause. Whether or not Senator Harradine believes it is a pretend sunset clause does not matter. There has been a lot of pretence in this debate. A lot of that relates to whether or not what we are doing is actually going to be fair and just for Aboriginal people.What we would have is that every single group, every single clan has to go through the claim process for every potential claim on an area around Australia on the basis that some time in the future we are going to close the door. What an extraordinary and stupid thing for us to do. That is the principle. It is not about pretence or what we are going to do in the future. We are setting in train a situation where people are going to have to put in a claim. They are going to have to put themselves to this expense.We have been told that if they do not get their claim right, they go through all this extremely expensive process and the government—and Senator Harradine supported them—can knock them out on a technicality. They are going to have to start again. In six years time, they may well have gone through this process but made three mistakes and they run out of time. Do they have to come to the parliament each time this kind of process occurs? This principle is not acceptable. What we are going to do to the people on the ground by way of this sunset clause is not acceptable.It has taken 210 years to decide whether or not we are even going to think about recognising native title and we are saying that they have to have all their claims in in six years. This is outrageous. In other parts of the world they are going through the process of talking through treaties with their indigenous people and those treaty discussions are rightly taking decades because they need to be right. The Australian government needs to talk with each of the indigenous groups in this country.We are going through the process of setting a sunset clause—a Claytons sunset clause, as Senator Harradine says, or a pretence, if that is what Senator Bolkus is saying. They are saying that whatever decisions we now make can be rescinded in the future. We know that. What is this opposition going to do in the future if they put their stamp to a sunset clause now?The ALP said in the past that they would not be supporting a sunset clause and now they are saying that they are going to support an amendment which allows that to happen. When Senator Bolkus says, `We will not be supporting that in the future,' what kind of credibility does that leave them with? They said, `We will stand firm. These are points that we will not move on.' Look what they have done.We are leaving that over the heads of indigenous people. We are making sure that the court system, the inadequate processing system, the inadequate resources are all going to be stretched to their absolute limits and beyond because absolutely everybody who does not know at this point in time that their lands might be threatened by future development will be forced to put in a claim of some sort on the basis that at some time in the future they are going to need it. That is ridiculous. No way in the world should we be supporting that. The Labor Party said they will.Does this make this legislation acceptable? Does this make this legislation anywhere near the revolting, inadequate 1997 legislation? If that is what the Labor Party thinks, they have a very different idea than I do of what is equity. They have a very different idea of what is acceptable. I would think by this stage they must realise that the legislation, even from their point of view, has to be voted down.12:00:002318Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—Senator Harradine may be prepared to help us here. In reflecting on his question to me of do you want a double dissolution, I wondered whether he has some information for us which suggests that the government in fact is not going to force a double dissolution. They will accept the RDA but if we water down the other four sticking points then maybe the government will fold and not force a double dissolution. That is what his question suggests to me.The Democrats have not been in any of these discussions. He may be able to help us if there is some information he has that in fact the government is not going to force a double dissolution as long as we give in on the other three sticking points and they are prepared to accept the RDA one, which we have already passed and which the minister has said is a sticking point. He may have some information that I am not party to in terms of a double dissolution election that may help us in this debate. I might say that the Democrats are still listening to this debate.12:02:002318Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I am neither the Governor-General nor the Prime Minister, so I am unable to respond to what Senator Woodley says.12:02:002318Brown, Sen BobSenator BROWNQD4TASAG00—That was an in-depth defence of the position if I ever heard one—a position which Senator Harradine says is fair, honourable and reasonable. He is saying that the position he held just four months ago, which only the Greens and Democrats are maintaining now, is suddenly somehow unfair, dishonourable and unreasonable. The shifting sands are all over there under Senator Harradine. Here we are getting to exactly the same process as we got to with the threshold test the other night. I repeat that again because this analysis is important. I wonder what we will get with the right to negotiate.The Labor Party says, `We are sticking to our position but either us or Senator Harradine has got a weaker position. He won't vote for it so it won't get through. We then have to go for the weaker position, don't we? To the Greens and Democrats, you have to come to the weaker position or otherwise we are left with the Howard government position.' Well, Senator Bolkus and gutless Labor Party, we are not coming with you at all. We went as far as we were going to go in December last year. We are listening to what the indigenous people have to say on this, which is to hold the line at this point.The theory behind what Senator Harradine says—and I cannot understand why you have not worked this out; maybe you have and maybe it is your own theory as well—is that what we have to try to do here is go as close as we can to the Howard government's 10-point plan to avoid a double dissolution and a joint house sitting next year which will put the neat 10-point plan through. Code: let's put the 10-point plan through now with a little bit of tinsel and dressing on it and let's sell out the indigenous people in doing that. Well, we are not going to. This vote today is another step towards a clear enforcement of the principles behind the 10-point plan.Senator Minchin sits over there and says, `Look at all the other people disagreeing on this.' But he must be very pleased, not about the Greens and Democrats holding firm—that has always been a threat to him and he does not like to hear his 10-point plan labelled for what it is—but to see the backflips, backsliding, weak-kneed approach, this let's find a point which is going to be acceptable to the government manoeuvring which is going on on the other non-government benches.Senator Harradine, your position last year was fair, honourable and reasonable. The position to which you have moved is unfair, dishonourable and unreasonable. There has to be a line drawn somewhere. As Senator Margetts said, we felt the position in Decem ber last year was untenable. That is why we voted against the legislation, despite the amendments.To go further on the four points, remember this: even on the RDA, the Labor Party and Senator Harradine would not vote for an amendment which made sure the RDA prevailed over all the components of this legislation. They went for a weak second position there. If the government gets its way with an acceptable arrangement on the other three points, I wonder if we will not see the RDA revisited, as Senator Woodley pointed out. Senator Harradine, you said that for the indigenous people the clock will start ticking. What I hear from you is that the bell has started to toll.The CHAIRMAN —The question is that government amendment No. 61 be agreed to. Question put.12:11:00The committee divided. (The Chairman—Senator S. M. West)34Abetz, E. Alston, R. K. R.Boswell, R. L. D. Brownhill, D. G. C.Calvert, P. H. Campbell, I. G.Chapman, H. G. P. Colston, M. A.Coonan, H. Crane, W.Eggleston, A. Ellison, C.Ferguson, A. B. Ferris, J.Gibson, B. F. Harradine, B.Herron, J. Hill, R. M.Kemp, R. Lightfoot, P. R.Macdonald, I. Macdonald, S.MacGibbon, D. J. Minchin, N. H.Newman, J. M. O'Chee, W. G.*Parer, W. R. Reid, M. E.Synon, K. M. Tambling, G. E. J.Tierney, J. Troeth, J.Vanstone, A. E. Watson, J. O. W.32Allison, L. Bartlett, A. J. J.Bishop, M. Bolkus, N.Bourne, V. Brown, B.Campbell, G. Collins, J. M. A.Conroy, S.* Cook, P. F. S.Crowley, R. A. Denman, K. J.Evans, C. V. Forshaw, M. G.Hogg, J. Lees, M. H.Lundy, K. Mackay, S.Margetts, D. McKiernan, J. P.Murphy, S. M. Murray, A.Neal, B. J. O'Brien, K. W. K.Quirke, J. A. Ray, R. F.Reynolds, M. Schacht, C. C.Sherry, N. Stott Despoja, N.West, S. M. Woodley, J.Heffernan, W. Faulkner, J. P.Knowles, S. C. Cooney, B.McGauran, J. J. J. Gibbs, B.Patterson, K. C. L. Carr, K.* denotes teller(Senator Payne did not vote, to compensate for the vacancy caused by the resignation of Senator Bob Collins.)Question so resolved in the affirmative.10000CHAIRMANThe CHAIRMAN—The question now is that schedule 2, item 3, as amended, be agreed to.12:14:002319Brown, Sen BobSenator BROWNQD4TASAG00—This is the item on which we vote for the government's sunset clause or we vote against it. In December last year the majority in this place voted against it. That majority, of course, included the Labor Party and Senator Harradine. This vote is critical. This is the vote which says whether or not indigenous people have their rights cut down in six years time. This is an eleventh hour call to those members who voted against this abhorrent six-year sunset to stand firm now.Senator Alston interjecting—QD4Brown, Sen BobSenator BROWN—Senator Alston might have the good grace to interject from his chair if he is going to.10000CHAIRMANThe CHAIRMAN—I did not hear any interjections. All interjections are unruly.HX5WOODLEYSenator Woodley—I raise the point of order, Madam Chairman, that if Senator Alston continues to interject when he is not in his seat that is doubly unruly.10000CHAIRMANThe CHAIRMAN—If Senator Alston is interjecting from outside of his seat, it is unruly and I would ask him to resume his seat or remain quiet please.QD4Brown, Sen BobSenator BROWN—So we are about to see— H15CAMPBELLSenator Ian Campbell—This is the bloke who interjected on President Clinton.QD4Brown, Sen BobSenator BROWN—Yes, I did interject on President Clinton, because I was there standing to defend the indigenous people of Tibet, and what we want to see here is who is going to defend the indigenous people of Australia, who is going to stand by their position of last December, and who is going to demur from that position. We are going to see who is going to be fair, honourable and reasonable in this forthcoming vote.12:16:002320Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—It seems to me that the Labor Party's N33 is amending what we have just put through. In this debate the government and opposition have argued on a number of occasions that when we are amending an amendment that has just gone through we should put that next. I would ask that we deal with amendment N33 and then see whether the schedule can be supported.12:17:002320Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I believe that we should proceed as we are going now. If this motion is negatived, then clearly there is no need for any further amendments. If it is approved, there is.10000CHAIRMANThe CHAIRMAN—The question is that schedule 2, item 3, as amended, be agreed to. Question put.12:20:00The committee divided. (The Chairman—Senator S. M. West)34Abetz, E. Alston, R. K. R.Boswell, R. L. D. Brownhill, D. G. C.Calvert, P. H. Campbell, I. G.Chapman, H. G. P. Colston, M. A.Coonan, H. Crane, W.Eggleston, A. Ellison, C.Ferguson, A. B. Ferris, J.Gibson, B. F. Harradine, B.Herron, J. Hill, R. M.Kemp, R. Lightfoot, P. R.Macdonald, I. Macdonald, S.MacGibbon, D. J. Minchin, N. H.Newman, J. M. O'Chee, W. G.*Parer, W. R. Reid, M. E.Synon, K. M. Tambling, G. E. J.Tierney, J. Troeth, J.Vanstone, A. E. Watson, J. O. W.32Allison, L. Bartlett, A. J. J.Bishop, M. Bolkus, N.Bourne, V. Brown, B.Campbell, G. Collins, J. M. A.Conroy, S.* Cook, P. F. S.Crowley, R. A. Denman, K. J.Evans, C. V. Forshaw, M. G.Hogg, J. Lees, M. H.Lundy, K. Mackay, S.Margetts, D. McKiernan, J. P.Murphy, S. M. Murray, A.Neal, B. J. O'Brien, K. W. K.Quirke, J. A. Ray, R. F.Reynolds, M. Schacht, C. C.Sherry, N. Stott Despoja, N.West, S. M. Woodley, J.Heffernan, W. Faulkner, J. P.Knowles, S. C. Cooney, B.McGauran, J. J. J. Gibbs, B.Payne, M. A.Carr, K.* denotes teller(Senator Patterson did not vote, to compensate for the vacancy caused by the resignation of Senator Bob Collins.)Question so resolved in the affirmative.Motion (by Senator Bolkus) proposed:(N33) Schedule 2, item 3, page 147 (after line 15), after subsection (1A), insert: (1B) Subsection (1A) does not apply in relation to an application for a determination of native title until each House of the Parliament has approved a determination by the Minister that it should apply.12:24:002320Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—During this debate, obviously people will try to justify their position as to why they are changing their vote, why they are doing what they are doing and why they are still you-beaut, reasonable people for doing so. I would like to mention that the Australian Labor Party started early and we have not actually broken for lunch. Earlier on, almost as soon as we started giving an indication that we would continue to vote in the way we had indicated on this issue, even though the Labor Party have said that they will support a sunset clause, they were spin ning. They were sending their spinner into the gallery and we could see him from here putting their position to a captive audience. It is always possible that they may have succeeded.In history, it is going to be very important that what has happened in this place is as clear as possible, that there is not a pretence that good is bad, that there is not a pretence that what passes here is somehow good for Aboriginal people, that there is not a pretence that goes down. It is important for the community to know how bad are the measures of this bill that are behind the decisions we are making today.12:26:002321Harradine, Sen BrianSenator HARRADINE6H4TASIND00—To remind the committee what amendment N33 is: it requires that the sunset clause, in effect, is not to apply in relation to an application for a determination of native title until each house of parliament has approved a determination by the minister that it should apply. It is as clear as crystal that, in effect, the sunset clause will not come into effect until such time as both houses of parliament agree. I do not want to canvass what we discussed a while ago—I cannot remember how long—on this particular matter. This is the opportunity for the Greens and the Democrats to support this particular motion, which would then mean that the provision would be able to satisfy the test of just, fair, honourable and reasonable legislation in respect of the sunset clause.I do hope that the Greens do not take that `cut off your nose to spite your face' attitude that they took when I moved the amendment to the threshold test provisions, wherein I attempted to be able to include the stolen generation and those indigenous land-holders who were locked out by pastoralists in the past. On that occasion, the Greens voted against my amendment which would have opened the gates for those indigenous people in Australia for whom the gates were locked, and would have covered the stolen generation.I do appeal to them not to take the dog in the manger attitude that they are adopting at the present moment, to recognise that we are in a serious situation here with the possibility of getting some type of legislation through which will meet those tests that I mentioned and, in this particular regard, recognise that this was one of the sticking points and that this is one of the ways of getting around that sticking point.12:29:002321Brown, Sen BobSenator BROWNQD4TASAG00—I give Senator Harradine credit for greater intelligence than for having us believe that the parameters he is using here are truly ones of trying to reach a fair, honourable and reasonable middle point. That was his position last December—that that was fair, honourable and reasonable.Now he is coming in with a different stipulation, which is that we must move towards an accommodation with the government. He is saying to the Greens and Democrats, `If you don't move to give the Howard government more of what it wants, you're a dog in the manger.' What absolute gall he has when he tries to dress up his unforgivable welching on the position of last December, and then points the finger across the chamber to people who are standing firm for indigenous rights and says, `You're the dog in the manger.' It is not hard to work out what is happening here. Dressed up in this pious, fair, honourable, reasonable cloak is a sell-out of the indigenous people.Somebody came up to me on the lawns of Parliament House last week and said, `Look at Senator Harradine. This means he is going with us, doesn't it?' I reserve judgment. But I do not think too many people will be dancing at this outcome. Certainly not too many indigenous people will be dancing with joy at what Senator Harradine is doing today, because it is blighting the expectations that came out of that performance last week.I suppose, in his own way, Senator Harradine—who has been working for all those hours and hours that we have heard about, and all of us have been doing the same in recent weeks—thought, `Here is the plan: the Greens and Democrats will have no option but to come with me to the Promised Land of an accommodation with the Howard government.' In his terms, it is objectionable legislation.Well, you calculated wrongly, Senator Harradine. Madam Chair, it shows political ineptness not to have tried this on us weeks ago. It was a plan for failure from the outset. When you start caving in to a government which is going beyond where we went last year, when you start caving in to a government which has race-based election threats hanging over everybody, you have to be prepared to go all the way. If we start going in this direction with Senator Harradine, backing up motions which have been put by the Labor Party for his facility, then you end up moving further and further down the track.Of this Labor Party amendment, Senator Harradine says, `Oh well, it is not a sunset clause that is watertight. It means that the parliament, somewhere down the line, can decide whether it will actually give it the final tick.' Make no bones about it: through this capitulating amendment of the Labor Party, we are being asked to vote for a sunset clause. It is not good enough to say, `Let's hope that a parliament further down the line will look at this again in some different light.' If Labor and Senator Harradine cannot stand firm on this now, why should we expect they will be any different three or four years down the line? Of course they will not be. The test is here and now, not three or four years down the line.So, once again, we will find, presumably, the Labor Party supporting its own sell-out amendment, and Senator Harradine will sit there and support it as well. If Labor had not put it up, he would not be doing this. The government will come over here and stick by the Prime Minister's `no move' principle. We might say—although I abhor his position—that so far he is not budging on that, unlike the Labor Party on this side which is budging. And over here the Greens and the Democrats will say, `We won't sell out further; we stand by where we were last year'—and we endorsed the arguments of Senator Harradine and the Labor Party when they said `No' to this in December. For us those arguments ring true, and we will hold our ground on that. The epithets from Senator Harradine trying to weaken our resolve so we will follow his weakening resolve simply will not work.12:35:002322Bolkus, Sen NickSenator BOLKUSXE4SAALP00—If it has not been evident in flashing lights all morning, it should be evident right now that the decision for this Senate today on the sunset clause is not whether we have one but whether we give it approval now or whether we, as a Senate, as a parliament, have some control over when it comes into effect, if it in fact comes into effect at all. That is the decision that has been facing us for the last hour or two, and it is still the decision facing us now.It is not now a matter of whether we have a sunset clause, because that vote has been taken and the outcome is what we always thought it would be. In the legislation now there is a sunset clause. It has been accepted by this Senate.The question that we have had to face all morning is does that sunset clause apply from the date of proclamation of this bill, or does it apply from next week, this week or after a double dissolution? I do not think, if there is an election, this government will have the numbers to be returned, but, if by some misfortune they are returned, they probably will not have the numbers to get it through a joint sitting.The question before us is whether we want to have some control over when this clause comes into effect. The opposition proposal, despite all the bluster, basically says the body that should make the decision as to whether there is a sunset clause continues to ride shotgun over that decision. That body is the parliament. If the government cannot get a majority in both houses, it cannot trigger into operation the sunset clause. That is all we have been doing this morning.I say to this committee that the decision on whether a sunset clause is in the legislation has been taken. Our decision now is whether we allow the government to have its way or whether we say that in the future we want a right to control the trigger. That is the decision that needs to be taken now.There has been all this gumf about no-one believing me. I will not react to that other than to say that the guarantee is that the law will have to change, or both houses of parliament will have to take a deliberative decision to ensure that the sunset clause takes effect. That is the impact of our amendment.12:38:002323Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—Senator Bolkus, if you win the next election you could very well, as a government, remove the sunset clause yourself—and I presume that is what you would do.XE4BOLKUSSenator Bolkus—Not unless we get the numbers in the Senate.HX5Woodley, Sen JohnSenator WOODLEY—I can assure you that, if we have anything to do with it, you would have those numbers. The problem is that, as you said before, any government can change any piece of legislation. The only vote and debate which counts is the one we are having now. I will admit you very calmly put a position a moment or two ago and it sounded very reasonable; it was just wrong.We would not have had this debate if Senator Harradine had not known that there was an out for him. If there had been no amendment foreshadowed which gave Senator Harradine an opportunity to say, `I don't have to vote the sunset clause down now because later I will have the opportunity of an out,' he would have been forced to vote the sunset clause down to be consistent with his 1997 position. The problem is that putting up an out predetermined how the vote on the sunset clause would go. That is why Senator Margetts's suggestion was a very reasonable one: that we should vote for that amendment first so that we would know what the options were in terms of the sunset clause and whether or not we should vote it down.The same thing happened the other night: the government, the Labor Party and Senator Harradine predetermined that the pressure would be on the Democrats and the Greens to vote in a certain way against their principles. We always have stood on the principle that the sunset clause is unacceptable. To give an opportunity for an out is the same. I recognise you voted against the sunset clause, but always in the knowledge that there was a fall-back position. I abhor the process which puts this kind of pressure on the minor parties, saying, `Well, you'll be the ones that will sell them down the drain if you don't vote for our fall-back position.'It is incredible that we should be following this kind of process. This is one of the four so-called sticking points. It is as plain as the nose on your face that people have discussed this whole issue prior to this debate. I am not going to say that deals have been done, but quite clearly a lot of people—not the Democrats and not the Greens—knew what they were going to do; they mapped out a process. What disappoints me so much is that we have not had a debate on the principles of whether or not a sunset clause without any kind of qualification should be the matter before the Senate.I am very worried now about the whole issue of the right to negotiate. Will we have the same kind of process where there is a fall-back position and where the Democrats and the Greens will be put in the position of them saying, `Okay, if you don't vote for the fall-back position, then look out'? I am afraid Senator Margetts is right: we are aware that the Labor Party have already been in the gallery spinning their side of the story to try to make sure that they do not get any flak over this. I do not know if I even care about the gallery any more. I really do care about what we are doing. When you put into process these tricky kinds of processes to put pressure on us, it really makes me very angry and very disappointed.At their national conference in Hobart, the Labor Party said they would keep faith with Wik. I guess they will have to answer to the indigenous people. I have tried to keep faith with what the indigenous people have asked us to do.Amendment not agreed to.12:43:002323Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Madam Temporary Chairman, I ask that Greens-Democrat amendment No. 190 be recommitted.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Reynolds)—Senator, I am advised it has already been voted on.DX5Margetts, Sen DeeSenator MARGETTS—That is why I asked for it to be recommitted.12:44:002323Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I seek clarification. I thought we had voted and divided on that. Could a case be made for recommittal before we proceed? We would oppose it unless there is some very good reason which I have not heard.12:44:002324Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—This is the last opportunity for the Senate to reconsider its position. It has been said to us by Senator Bolkus that the reason they voted was because of the order. We know that was a nonsense, we know the whole thing was a set-up—so we just want to prove it.12:44:002324Bolkus, Sen NickSenator BOLKUSXE4SAALP00—We voted for this amendment just a few minutes ago with the Greens and the Democrats; order had nothing to do with it. We have actually voted for it already and we got defeated. Once again, this is another case of the Greens crying over spilt milk and really you should have thought about this before. We have had the debate all morning and, as I said, it has been there in flashing lights all morning for you to see where we were going.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Order! It being 12.45 p.m. I shall report progress.Progress reported.Matters of Public Interest2324232412:45:002324Patterson, Sen KaySenator PATTERSONLI4VICLP10—I rise today to speak on the topic of the Conference for Older Australians and the International Year of Older Persons. The last time I rose in this chamber to discuss these matters, on 28 May 1997, I spoke of the conference's plans to fulfil its key role in coordinating the government's role in the International Year of Older Persons. This is the United Nations year to be held in 1999. I now wish to advise the Senate on our progress, particularly the success of the consultation process which has been pursued by the conference.For those who are not fully aware, there have been three approaches to the year. The Conference for Older Australians is a committee appointed by the Prime Minister, which he asked me to chair, and which is coordinating the Commonwealth's response to the international year. There is the Healthy Ageing Taskforce which is a task force of people from the states of Australia coordinating the state responses to the international year. There is a group called Coalition `99, which has been formed from the non-government sector to develop the non-government sector's response to the international year. I have to report that there has been constant contact between those three groups to ensure that we have a coordinated approach, that we avoid duplication as much as possible and that we have a highly successful year.The International Year of Disabled Persons was, I think, one of the most successful years. It was a year which many of us will remember, when breaking down the barriers was a theme which saw not only a celebration of the achievements and abilities of people with disabilities, but accessibility to the community opened up to people with disabilities, to buildings and to all sorts of other facilities, and also to areas such as employment, which had been neglected in previous years.In the early 1980s we saw a great deal of advancement for people with disabilities and we saw a spin-off from the year. If, at the end of next year, I can say that we have had a year in which we have celebrated the contribution of older people to our community, and we have actually addressed issues that concern them that have long-term spin-offs and long-term effects, as did IYDP, then I will think that we have achieved something.The Conference for Older Australians has adopted a four-pronged approach. The first is a process of consultation, of moving around the community and asking older people and people working with older people to address the sorts of things that they think could be achieved in the International Year of Older Persons. The second prong is to put in place a program of recognition which will hopefully involve House of Representatives people cooperating in an inter-generational approach of identifying older people in the community who are good examples of pioneers in life, who can set an example to all of us as we move on through life on the ways in which we can live, if we have our health, to a fulfilled and productive old age. Also, we will be looking towards the media to participate in the year to improve attitudes to older people.The third prong of the approach is a whole of government approach. The Prime Minister wrote to every minister in the federal parliament asking them to look at their portfolios for aspects where they may able to initiate and/or adapt a program. I have met with almost all the ministers now on two occasions. I have been delighted at the response that they and the departments have given to the year, and the cooperation that they have shown in some very creative and innovative ideas that can be used in the year, not only for the year itself but to have long-term beneficial effects. I am very grateful to the ministers for the attention they have paid to that and for their cooperation.The fourth part of our approach is a business and professional organisation and community partnership approach to involve business, professional organisations such as physios, OTs, nurses, podiatrists, dietitians, accountants—all the professions—and the community in partnerships on projects that may affect older people. So that is the four-pronged approach.I want to talk just a bit about the planning for the year and then to speak briefly about the consultation approach. In planning for the year, the Conference for Older Australians has identified the following areas which require attention: (a) raising awareness among all Australians of the positive role older people can and do play in the community, and the potential for this role to expand; (b) addressing negative stereotypes about older people and ageing, and reinforcing positive images in the media and in the community; (c) celebrating the diversity and self reliance of Australia's older population; (d) fostering inter-generational interaction and understanding; (e) promoting a whole of government approach to issues of ageing, including encouraging policy directions and programs that are more responsive to the needs of older people; (f) encouraging research and planning to effectively and efficiently meet the present and future needs of Australia's ageing population; and (g) supporting broad and practical partnerships on ageing between the public and private sectors, between governments, and between local communities and individuals.Let me just talk about the consultation process. The Conference for Older Australians wanted a consultation process in which they were actively hands-on involved, not a process in which a consultant would be employed, so we thought of a way of penetrating into the Australian community and we took a risky approach. I was told it was a risky approach; I was told by some sceptics that it most probably could have been a foolhardy approach.I approached all of the members of the House of Representatives and all of the members of the Senate and asked them to nominate four people who would participate in a consultation process. Over 90 per cent of the members of parliament responded to that request. That means we have penetrated into the community at a level which would have been very difficult for a consultant who was taking it on as a consultancy, because we were able to use the local knowledge and the experiences particularly of the House of Representatives members, but senators assisted as well. The House of Representatives members have nominated people. Some members have been incredibly creative and have had consultations in their offices or around their electorates beforehand and have chosen people to come.I just want to put on the public record my appreciation to all members of parliament who entrusted those representatives to us. We have fulfilled our obligation to them in carrying out those consultations in a bipartisan way. Politics have not been raised, and the level of contribution of those people in the community has been exciting to say the least. The members of the conference who have attended—not all the members go to each consultation—have come away from some of those consultations on a high, it is the only way I could describe it. After the consultation in Dubbo, I got a phone call from one of the conference members who said, `I've had the most fantastic day with the most fantastic group of people.'We are halfway through the process. We have undertaken consultations in Canberra, Melbourne, Adelaide, Brisbane, Sydney, Newcastle, Dubbo and Townsville. In those consultations, we have brought people in from all over the community. We made a decision that nobody should be unable to get there, so we offered assistance with travel to anybody who needed it. Nobody has been denied the ability to come because they could not afford to come or they were too far away. Even some of the consultations in Canberra, for example, were representative of people from around the Goulburn area and parts of western New South Wales. So we are tapping into rural and regional communities as well.Next week we are going to Perth, and then the week after we are going to Caloundra, Coffs Harbour, Launceston, Traralgon, Ballarat and Wodonga. As well, we will be having a satellite link with the most remote and rural areas. We will be using technology to hook up people who have been nominated by their members of parliament in the most remote areas.The issues that have been raised have been varied, but there has been a common theme coming through. There has been a concern about personal security and a fear of crime—in particular, a fear of crime involving scams or financial rorts, where people are tricked into recladding their houses and then somebody disappears with their deposit. What people have been saying is, `We need to be alerted to these scams. We need to be forewarned.'There has particularly been a theme of requiring greater flexibility in building codes to, first of all, enable houses to be more easily adapted for older people. What the consultations have said is that every house will see at least one older generation in them and some houses will have many older generations inhabiting them, so the houses should be easily adaptable for someone who is older. That means studs should be in the right place to enable aids to be attached to the walls in appropriate places and that this ought to be thought about beforehand. It means there ought to be at least one toilet or bathroom that can be accessed by a wheelchair. And it means best practice planning would involve a pitch in at least one stairway—if there is access by a stairway to a single-storey house or a slightly raised building—that could have a ramp over it so a wheelchair can manoeuvre over it.They are very simple ideas, but they are the sorts of things coming through. It will not always be that government can deal with the issues that are raised. It may be that they will involve architects, businesses and local government, but we will be feeding these ideas back to the relevant communities.Another thing that has come strongly through is attitudes to ageing. Almost every group without exception has been critical of the way in which older people are portrayed in the media. People have said that you see reports like, `A 35-year-old woman was involved in an accident,' and then, `An elderly person of 60 was involved in an accident.' Older people always have a qualification in front of their age, whereas younger people do not. Some older people also indicated that they feel that advertisers are sometimes less than sensitive towards their needs. Whether that is true or not, that is the perception that older people have and that is something that ought to be looked at. We ought to face that, and the media and the advertising industry need to address that.Issues of employment of older people have come up, so has the need to value volunteerism. A lot of older people feel their voluntary efforts are not acknowledged in an appropriate way in the community. That is something every individual can do something about, as well as governments, business organisations and community organisations.One other constant theme coming through the consultations has been access to technology. Many older people are very actively involved in learning how to use computers. They have access to the Internet and are finding great joy in that and in being able to communicate, especially with younger members of the family. We have heard stories of older people playing chess with their grandsons on the opposite side of the continent. The consultations have suggested that schools might get involved in this and have intergenerational days, where young people come in during the school holidays and introduce older people to technology and eliminate some of the unfounded fear that exists. Those of us who have had experience with computers realise that sometimes you are inhibited by fear rather than the actuality of undertaking an activity on a computer. These have been some suggestions that could be taken up by the Association of Independent Schools or the state school systems.Health, aged care and income security have been raised. They are issues which will not necessarily be able to be dealt with in the year, but we will inform the National Strategy for an Ageing Australia, which was announced by the Prime Minister (Mr Howard) late last year. The National Strategy for an Ageing Australia is a vehicle to examine the broad policy issues created by the population ageing and to provide a framework for activities already under way to improve the wellbeing of Australians as they age. This will involve short, medium and long-term consultations and it will involve planning, suggestions and ideas not only for the short term but for the long term as we move to an ageing population.I want to again put on the record my thanks to my colleagues both in this house and the other for their cooperation in what has to date proved to be a very successful process in consulting older people about what can be done in the International Year of Older Persons.232713:00:002327Cook, Sen PeterSenator COOKRF4WAALP00—Over the last two weeks I have carefully outlined how Senator Parer has colluded in, and helped implement for his benefit, no fewer than three tax avoidance schemes. These are best epitomised by the QCMM (ESP) Pty Ltd executive remuneration scheme that enabled Senator Parer to turn 44c into $56,300 in just over a year and to allow the QCMM group of companies to claim just on $2.7 million in contrived tax deductions through the purchase of employer class shares in QCMM (ESP) Pty Ltd. The key feature of all three schemes is that, to be in a position to exploit them, you have to be what the tax office calls a high wealth individual—in other words, a rich person.7E4VANSTONESenator Vanstone—Mr Acting Deputy President, I rise on a point of order. I ask that you ask Senator Cook to withdraw the imputation that he is making here. To say that there are contrived tax deductions is a clear implication that they are false. This debate is for matters of public interest and it will not survive if people come in here and misuse it. A contrived tax deduction is not an honest and fair one.LI4PATTERSONSenator Patterson—On the point of order, Mr Acting Deputy President: Senator Cook came into this chamber the other day and tried every which way to impute improper motives to Senator Parer. He is now doing it again today to try to weasel with words in order to impute improper motives to Senator Parer. I think it is totally inappropriate. It is not what ought to be done in this chamber. He knows better than this. He has been here long enough. I agree with Senator Amanda Vanstone.10000ACTING DEPUTY PRESIDENTThe ACTING DEPUTY PRESIDENT (Senator Calvert)—There is no point of order.RF4Cook, Sen PeterSenator COOK—On the point of order, Mr Acting Deputy President: what is clear in this case is that Senator Parer has set up an elaborate system of trusts and that elaborate system of trusts enables him—10000ACTING DEPUTY PRESIDENTThe ACTING DEPUTY PRESIDENT—Are you debating the matter or are you speaking to the point of order?RF4Cook, Sen PeterSenator COOK—I am speaking to the point of order.10000ACTING DEPUTY PRESIDENTThe ACTING DEPUTY PRESIDENT—I have ruled the point of order out of order.RF4Cook, Sen PeterSenator COOK—Sorry, I did not hear you.10000ACTING DEPUTY PRESIDENTThe ACTING DEPUTY PRESIDENT—But I am listening to what you are saying and I do believe you should withdraw the word `collusion' or `colluding'. At the beginning of your speech you alleged a senator was colluding. I do believe that is unparliamentary.RF4Cook, Sen PeterSenator COOK—If that is unparliamentary, I will withdraw the word and move on. In other words, you have to be a rich person. These schemes are not for ordinary Australians. For these avoidance schemes to pay off, you have to have a network of wealthy mates, be rich enough to pay a fat fee to the best slippery lawyers and sharp accountants, and then make a profit out of the transaction. Most Australians pay their tax each fortnight because it is deducted from their pay. They do not earn enough to afford to be avoiders even if they wanted to for, as the Australian Taxation Office itself said in evidence last Friday, it would be more correct to say that the wealthier you get, the more demand there is for these sorts of techniques. Tax avoidance is the pastime of the wealthy, not of the average or even of the well-paid Australian.Last night the 7.30 Report did an expose on tax avoidance through trusts—the sort of thing that Senator Parer is involved with. In that item Daryl Dixon, an investment adviser, said billions were avoided every year by this dodge and ACOSS said $8 billion was lost every year through tax avoidance. If ACOSS is right, then Mr Howard could afford to give the states $3.5 billion in extra Medicare funding to ensure Australians can gain access to public hospitals, elderly people would not be forced to sell their homes to secure a nursing home bed and pensioners would not have to resort to superglue to fix their dentures due to the axing of the Commonwealth dental health scheme—and all this without having a regressive GST imposed on them. One reason why the Beazley opposition will continue to pursue this issue—as exemplified by the artful tax avoider Senator Parer—is the emblem of the Howard government on tax: let the wealthy continue to avoid tax while the rest of us get slugged with a GST.Last Friday the Australian Taxation Office appeared before the Senate Economics Legislation Committee. It was an opportunity to obtain from the tax office their views on the types of tax avoidance schemes practised by Senator Parer. Unfortunately, time does not allow me to revisit all of Senator Parer's schemes today. One scheme involved the creation of the AQRM trust, which holds one H-class share in QCMM Pty Ltd. According to documents lodged with the Queensland Supreme Court, we now know why that trust was created. It was established to facilitate the creation of a pool of fully franked dividends for distribution to QCMM directors and key employees—basically, Senator Parer and his wealthy mates. This trust is nothing more than a mechanism to stream and then manipulate the distribution of fully franked dividend income to the beneficiaries of the AQRM trust in order to maximise the avoidance of tax for those involved. What is more, the trust was established with the full knowledge and support of the artful tax avoider Senator Parer.As the tax office stated on Friday, such dividend streaming arrangements are engaged in by only high wealth individuals. The tax office also stated, as I said previously: `The wealthier you get, the more demand there is for these sorts of techniques.' Furthermore, in answer to the question: `Is the use of interposed entities, such as trusts or other companies, popular where dividend streaming occurs?' the tax office's response was a curt yes.Why are trusts popular, one may ask? Because, according to the Australian Taxation Office, trusts provide a fairly simple means of circumventing the existing anti-dividend streaming provisions in the law. Here we have Senator Parer's blatant tax avoidance scheme exposed for what it is by the Australian Taxation Office. It is exposed as nothing more than a contrived and manipulative arrangement by wealthy individuals, such as himself, to abuse the tax system for their own personal gain. It is for the government to ensure there is equity and fairness in the tax system. The opposition will support any appropriate legislation to achieve this. In government we will crack down on tax avoidance so that no Australian will pay a disproportionate share of tax to cover revenue shortfalls created by underpaying wealthy free-riders.Let me now turn to the ethics of Senator Parer's conflict of interest and the failure to declare issue. There are three matters of substance here: the fact that Senator Parer broke the Prime Minister's code of conduct on conflict and on apparent conflict of interest grounds, the fact that he failed to disclose his interests and the fact that the Prime Minister would not enforce his code when it was broken. Because of the Prime Minister's refusal to stand by his code, it is now a dead letter. In fact, he has reinterpreted his code and declared it to be `guidelines and not a death sentence'.I want now to examine the morality and ethics of that argument. There are many codes of conduct that govern conflict of interest and ethical behaviour. The code of professional ethics and conduct of the Chartered Institute of Company Secretaries states that `company secretaries must not allow their position to conflict with their private interests' and `secretaries should always make complete and full disclosure of any interest they may have in a transaction'. Under that code, Senator Parer would be in default on two counts.The code of ethics binding the Australian Institute of Banking and Finance states:Members must avoid acquiring any business interest or participating in any business activity outside the bank or financial institution which would tend to create a conflict of interest . . . Under that code, Senator Parer would be in conflict. The Stock Exchange, too, is quite explicit when it comes to conflicts of interest and the need for proper disclosure. Under the heading `What is required to be disclosed', it says:Disclosure is required when the adviser has any direct, or indirect, pecuniary or other interest, that may reasonably be expected to be capable of influencing the securities adviser.Senator Parer would be in default on several occasions under that dicta. The Institute of Chartered Accountants in Australia has rules for ethical conduct. They are, in part:Members must both be, and appear to be, free of any interest which might be regarded, whatever its actual effect, as being incompatible with integrity and objectivity.Senator Parer, prior to placing his affairs in the hands of his children and now, would breach those rules. The same is true of the Australian Society of Certified Practising Accountants. Their ethics code states:A member in public practise shall not concurrently engage in any business, occupation or activity which is inconsistent and incompatible with the provision of professional services to clients. Senator Parer—gone again. All these ethical codes are of professions in the commercial and financial area—a field Senator Parer would be familiar with and come into contact with as a businessman and as an investor on almost a daily basis. I have not included lawyers who have similar requirements, not to mention extensive legal precedent, which if not observed can lead to disbarment. Nor have I included journalists or other professions, all of which are explicit on conflict of interest or apparent conflict of interest and the need to declare that conflict where it arises. Looking at the rules of other parliaments in like democracies, this issue is quite clear, no matter if it be in the United States of America, the United Kingdom, Canada or a dozen other countries.Finally, let me come to a professional body that Senator Parer may or may not have been a member of—the Institute of Company Directors—and its code of ethical behaviour. Senator Parer could have been a member. In the last decade he has held no fewer than 27 directorships and/or shareholdings in separate companies. We do not know if he was a member—if he was, he did not declare it. The institute's code states in relation to conflicts of interest:The personal interests of a director, and those of the director's family, must not be allowed to prevail over those of the company's shareholders generally. A director should seek to avoid conflicts of interest wherever possible. Full disclosure of any conflict, or potential conflict, must be made to the board.He is in breach of that institute's code as well.It is quite staggering, given Senator Parer's extensive experience as a company director and the quite strict code of conduct directors operate under, that Senator Parer had not instilled within himself the values and sense of probity that the Institute of Company Directors seeks its members to abide by. Is it any wonder that a former associate of Senator Parer is suing QCMM Pty Ltd in the Queensland Supreme Court for unpaid dividends on a similar class of shares to which Senator Parer has continued to receive dividends on after he left the company?What conclusions can be drawn from all this? A conflict or apparent conflict of interest and the failure to disclose are commonly regarded as unethical to the point that they are understood as universal and enduring principles defining improper behaviour. This is recognised and documented widely, including in the business community and other parliamentary democracies. To that extent, whether these principles are encoded in written form or not, they exist and are observed as benchmarks of public and private sector morality. The Prime Minister's written code is written proof that the government recognises these principles.Whichever way the government chooses to describe its own code is trite and beside the point; the principles here are sound, solid and cannot be subverted or evaded. Senator Parer is in direct conflict of interest—as well as apparent conflict of interest—by owning shares in a company operating in his portfolio and by now concealing his ownership by vesting his shares with his children on the basis that he can call up the proceeds from them at some future time.By not enforcing principles of proper moral and ethical conduct, the Prime Minister, Mr Howard, is complicit in the breaking of these principles and in the category of an accessary after the fact. As for Senator Parer, on the facts, if he were a member of the Institute of Company Directors, he would have broken their rules by offending against their ethical code. If he were a company secretary, he would be tossed out of their institute. If he were a stockbroker, he would lose his licence to operate. If he were a banker or financier, he would be disbarred. If he were a chartered accountant, he would be in breach of ethical standards and have recognition withdrawn. If he were a certified practising accountant, he would not be allowed to practise. He would not survive as a lawyer or a journalist either.From the outset of this sorry saga, the Prime Minister has been at pains to underline his loyalty to Senator Parer. It is clear that the Prime Minister is a friend of the embattled senator and that he now asks the Australian people to take Senator Parer on trust, despite the evidence against him. This is an attempt by Honest John to wrap the cloak of his own credibility around Senator Parer—not an advisable course. It is not a credible cloak and this action weakens it even further. However, it does raise an interesting question of loyalty.It is clear that the Prime Minister's notion of loyalty is not the same as Senator Parer's. While personal friendships should not get in the way of prime ministerial public duty, nonetheless he has stood by Senator Parer. Does Senator Parer reciprocate his loyalty and stand by the Prime Minister? To answer this question one need look no further than the example set by former Senator Short and Senator Gibson—both of whom, out of loyalty to the Prime Minister and from an understanding of the damage they were causing the government, submitted their resignations. In this context, it is pertinent to look at the words of Senator Robert Hill who, speaking on 14 October 1996 in regard to the resignation of Senator Short, said:. . . I still regard Senator Short as an honourable and decent person . . . he has paid a very major price in parliamentary life. That, if anything, demonstrates not only the high standard that is expected of this government . . . a high standard not only in what is done but what is perceived to be done.If Senator Parer is loyal to the government and his Prime Minister, he should demonstrate the same high standard of loyalty that former Senator Short displayed and voluntarily fall on his sword.233013:14:002330Stott Despoja, Sen NatashaSenator STOTT DESPOJA3I6SAAD00—I rise to speak on quite an extraordinary matter which was revealed in this chamber yesterday regarding the government's strategy to sell its common youth allowance to the Australian community. The document, which was referred to in question time through Labor Party questions, reveals that this strategy is astounding in every respect. Point by point, this document analyses the weaknesses of the common youth allowance policy—and, as the chamber is aware, these are numerous—and presents a strategy to counteract criticism of the legislation. It must be stated at the outset that this represents a flagrant waste of departmental resources. The allocation of staff, presumably on a full-time basis, to develop a spin for the government to sell what even it acknowledges has deep flaws in its social policy, is unacceptable. This is a waste of time, energy and taxpayers' dollars, and it would only be compounded upon implementation of this strategy. It does not appear as if the government will spare any expense to try to sell this legislation with its retrograde elements.The strategy envisages a number of things; in particular, hiring a market research agency to undertake developmental research, benchmarking and testing of promotional concepts and tools. It also proposes the engagement of an advertising agency to develop imagery, and even an advertising campaign, the use of magazine guides, posters, bus shelter advertisements, and even McDonald's placemats. Then it suggests that a PR company should be given the job of handling issues management for the passage of the legislation and media strategy development.On top of outsourcing to the market research, PR firms and an advertising agency, the departmental document also suggests the production of a video, posters, a magazine and other promotional material to help sell the message that the common youth allowance is not as bad as it seems. On its own, the degree of outsourcing and promotion would suggest that the government has almost admitted defeat in its own efforts to sell the common youth allowance. However, the strategy in this document openly admits the points on which the policy is likely to be attacked.There are a number of examples in the document, and I find it extraordinary that it has effectively admitted to the negative points in the common youth allowance. These points include:We can expect more opposition from families after July 1 when families of young unemployed people start to feel the effect of the Parental Income Test.. . . . . . . . .We can expect disaffected families to air their grievances through the media . . . . . . . . . . . .Families will now have to support their young unemployed for another two years . . . . . . . . . . . .Youth allowance will cause more family disputes and encourage family breakdown . . . . . . . . . . . .Youth Allowance will cause more youth homelessness . . . . . . . . . . . .That $23,000 is not a lot of money before Youth Allowance starts to cut out because of the Parental Income Test.Those quotes are from this strategy document. However, instead of actually fixing what is wrong with the legislation, the government has decided that it is going to spend taxpayers' money—waste money—on glossy promotional campaigns which will fool no-one. The strategy acknowledges that there is widespread concern about this particular policy. It acknowledges that the concern comes from the Australian Council of Social Services, the National Union of Students and the Australian Youth Policy and Action Coalition, which it describes as `predictable'. It also describes the voluble opposition from religious groups and churches.The department obviously views the criticism from the two latter groups as more of a threat, because the document states:. . . they will have credibility with middle Australia as well as those families affected by the Parental Income Test.From the lists and comments contained in this departmental document, we can pretty safely assume that one of the chief aims of the strategy is to discredit some of these so-called `predictable' organisations—not to mention the church, religious and community groups—on this particular issue. To the same degree that youth groups or other advocacy organisations—and heaven forbid that any organisations might dissent from government line or policy—have already been sidelined, the attempt is to discredit them further.We should not forget that the strategy also takes the remarkable step of sidelining and targeting two individual members of parliament—myself from the Democrats and Jenny Macklin from the Labor Party in the other House. Apparently, we are spreading `negative publicity' and for that reason we have been singled out as people who should be counteracted. Some people have suggested that we should be flattered that the government feels that we are such a threat to its policy that it expends time and energy singling us out in documents. While it is clear that this document shows the extent to which groups such as the Democrats are perceived as a real threat by this government, it is unfortunate that the government is not prepared to defend the policy of the common youth allowance proposal on its merits, instead of singling out, criticising and counteracting individuals.I am amazed that the sustained efforts of my party and others to scrutinise and expose the regressive elements—and there are retrograde aspects—of this legislation have been branded as negative publicity by the department when, in fact, we are scrutinising, analysing and highlighting elements which we believe will negatively and adversely affect middle and lower income families in Australia.I would be more than happy to spread some positive news. I would be more than happy to talk in the community and in the media about positive initiatives from this government in relation to young people and policy affecting them. Unfortunately, the government has not given me a lot to go out and talk about in a positive or up-beat manner—it is resorting to McDonald's placemats to do that.If the government cannot handle criticism of its legislation—and, as the House of review, the responsibility of this chamber is to analyse, amend if necessary or appropriate, scrutinise and review legislation—then it should actually amend its policy, and not try to gloss over the real concerns of a variety of representative bodies. By all means, the groups mentioned within that strategy document are representative and, in most cases, grassroots organisations.The Democrats have long opposed a number of policy measures contained in the common youth allowance legislation. That is because we believe that they are retrograde and, in many respects, deeply unfair to young people and their families. Let's remember that lower to middle income families will be most negatively affected by these changes. Let's look at a number of those changes. There is the parental means test, which kicks in at an incredibly low threshold of around $23,400 per annum, and also the fact that 16- and 17-year-olds who are not in employment, education or training are going to lose their benefits. They are going to be completely dependent, morally and financially, on their families. The government still has not responded to the concerns of religious and other community groups as to how those young people and their families are expected to survive.The concocted notion of what constitutes an age of independence is another aspect of the legislation that we have great difficulty with. The premise of the legislation is flawed because it relies on the belief that young people should be financially and otherwise dependent upon their families well into adulthood. This ignores the social and economic realities of Australian life for young people and their families.We do not believe that young people and their families should be forced to undergo unreasonable and undue hardship as a result of this almost philosophical notion perpetuated by the government that families should be responsible for their children until they have reached these concocted ages of independence. Let's remember how high those ages are: 21 for young adults and 25 for young students. We are not talking about teenagers; these are young adults who are expected to be dependent upon their families and who will be judged according to their parental income.The common youth allowance sets up this moral obligation for parents to support young adults where there is no legal obligation in any other existing legislative framework. Entitlement will be subject to an incredibly harsh means test. As I said, the parental means test kicks in at just over $23,000—that is below average weekly earnings. That is a low level. No wonder families are concerned about the impact of this legislation.This legislation affects a large number of young Australians—around 560,000 young people will be eligible for some form of the youth allowance, of which approximately 70 per cent will be students. Government figures—and we are prepared to use government figures, although I believe they are probably quite a conservative estimate—estimate that 33,250 or around six per cent of young people will be receiving less money as a result of the common youth allowance, and 12,800 young people who currently receive some form of assistance will not receive anything at all under the new scheme. Is it any wonder that they and their families are responding negatively or with concern to the introduction of the CYA?These are just some of the measures that are contained within the government's policy. These are aspects which the Democrats have exposed, opposed and tried to amend. Community groups, churches, and young people and their families are well aware of the potential negative impact of the common youth allowance. They know the impact that that will have on their lives and, potentially, on the community as a whole. However, the government should not make the mistake of assuming that these people will be fooled or fobbed off by some kind of glossy promotional campaign or soapie scripts with favourable plot lines in episodes of Home and Away and Neighbours, let alone McDonald's placemats.If the government wants to win the support of the community on this issue, it should listen to the criticisms of this policy, rather than seeking to silence or target those individuals, community and other advocacy groups which would expose the problems in the legislation. It should change the legislation to make it fair. Only then will people like me, my party and other groups in society sing the government's praises on the issue—which we would do if it made the sort of positive changes which take into account some of the realities of family life today.233313:26:002333Tierney, Sen JohnSenator TIERNEYO15NSWLP10—This is my final speech in a series of three dealing with the study of information technologies and developments in Australia and overseas. This particular speech will deal with telecommunications. Four years ago, I had the opportunity to study what was a new idea at that time—the information superhighway in the United States. I said at that time that the Labor government needed to be a lot more pro-active in the development of this information superhighway in Australia.In 1994 there were real concerns about monopoly power, and the duopoly was developing at that time. The ALP really did nothing to allay these fears. The Labor government did not have a policy which would enable third parties to have proper access to the cable roll-out. In the Telecommunications Act 1997 this government has introduced an access regime which will fix the problems which the ALP neglected during its long stewardship.We will ensure that third parties have access at agreed commercial rates and, if there are any disagreements, this will not be fixed by backroom deals, as was the way in which the roll-out was determined under the previous government. Any disagreements under this government go before the Australian Consumer and Competition Commission. We have this system which, from my study, makes Australia a world leader in this regard. We have one act which covers all telecommunications in Australia, and in that regard we are much better placed than the United States and the United Kingdom.We have two main players and access for new entrants which will allow them to become telecommunications carriers. This was brought about by our change to the legislation opening up the market in July 1997. This government is dedicated to improving telecommunications services. The float of Telstra will improve service and improve prices. The introduction of competition in the telecommunications market will also give Australians greater choice in terms of services and providers. We have ensured that providers are legally required to put on price caps. There will be untimed local calls, universal service obligations and customer service guarantees.I believe that the changes brought about under this government make Australian legislation the best in the world in regard to the protection of consumers. The particular consumers that I have a great interest in—as I am based in regional and rural Australia—are the people outside the capital cities. This government has put Telstra and other telephone carriers on notice to improve telephone services and cater for the needs of rural and regional customers.Amendments to the Telecommunications Act to introduce penalties of up to $10 million if a phone company fails to comply with the directions of the industry regulator, the Australian Communications Authority, have been put in place. Rural areas will, as a result, have access to first rate telecommunications services as this new information age dawns. From my study, Australia's telecommunications regulatory framework is now world competitive.But Labor made this success, this change, that was brought about in the last few years, very difficult because, when they did start to grapple with this policy area in the early 1990s, they totally mucked it up. They had the chance to introduce one backbone system throughout Australia through what was called the common trench policy—that is, you provide, say, down one street a trench that is wide enough for a whole range of telecommunication carriers to have access to.If the ALP had done this in 1992, it would have headed off the ugly overhead cable roll-out that many cities in this country have been subjected to. It would have saved billions—let me repeat that, billions—of dollars in wasted duplicated infrastructure. Most importantly, it would have prevented the defacing of the environment, as we have in areas like northern Sydney where these ugly cables now hang across the poles down the main streets of those suburbs. It is interesting to note that Europe is now grappling with this issue five or six years on. It seems to be determined to introduce a one-trench policy, which will allow other people to enter the market at lower cost. It is a great pity that, under the previous government, Australia lost that opportunity. Malaysia, our main regional competitor in attracting information industries, is having big problems in rolling out its telecommunications backbone. Throughout Malaysia, only about 18 per cent of homes are on telephone, and in Kuala Lumpur the figure rises to only 50 per cent. This means a huge capacity exists as the standard of living in that country rises. It is very concerned about creating an information rich and information poor divide in its country as this roll-out continues, and it is looking at some form of subsidy for the roll-out in remote areas.Grappling with the establishment of this communications trench policy, the Malaysian telecommunications minister was very positive about the Australian government's infrastructure fund idea, which will ensure a more rapid roll-out in the more remote areas of the country. In Australia, we are also gaining a leading edge over our competitors by having a competitive Telstra in competition with companies like Optus and Vodafone. Since deregulation in 1997, a number of small players have been developing niche markets.I had the opportunity to speak with Optus's parent company, Cable and Wireless, and the discussions focused mainly on Optus. It suggested that competition in Australia will be further improved when Optus gets its act together on telephony software. I was told that the problems Optus has been having here in developing competitive telephony should be overcome by June 1988. We all wait with baited breath to see if that is the case because that will really force down the prices of telephone calls in Australia. The parent company was confident that Optus would be turning a profit in 1999. I also discussed with the parent company that earlier point I made about the Optus overhead cable roll-out and the very poor public perception of this.In 1994, I warned of the potential dangers of creating an information rich and information poor society in Australia if we did not get this information technology roll-out right—the main problem being, of course, companies concentrating on major cities first and rural areas a very distant second. However, probably better than any other country in the world, Australia has now ensured under this government that rural Australia is protected and will receive first-rate service.In London, I studied the effects of privatisation on British Telecom and the whole area of increased competition. The general consensus was that British Telecom needs to lift its game. I was told that it was still operating like an inefficient monopoly player and that it was not flexible enough to meet niche market demand. It was suggested that the future lay with a lot of small players, players that would have about 10,000 customers and would each meet niche demand and put together capacity, product and billing systems.I spoke to Telstra UK officials about this competition. They told me that there was overcapacity in the UK market, and Telstra UK believes that the second player in the UK, Mercury, was under pressure, perhaps more than British Telecom, from these new players. Its duopoly position has been threatened at the third player level, who, interestingly enough, is actually going after Mercury, which is the equivalent of our Optus, rather than British Telecom, the equivalent of our Telstra.Some other corporations that have other functions are actually looking at getting into the telecommunications market as competitors as well, and this is very good news for consumers. Groups that you would not think would have any interest in telecommunications, such as water corporations and electricity corporations, are looking to become players. What do they have in common? They have right of way access. They have paths through which pipes and electricity lines pass. With that right of way access already theirs, they can put through very quickly things like optic fibre. Of course, the other great advantage they have is centralised billing systems.So, by putting optic fibre through, these sorts of companies can get into telecommunications and create greater competition for the big players and drive prices down further. Those utilities in Australia—electricity and water—would be in a similar position and could get into this market, if they wished. The opportunity for that, of course, has been provided by the deregulated structure that we have already created.In Malaysia, interestingly enough, there were considerable problems with the way in which competition was developing. From my observations, Australia is probably developing things in a better way. I met with the Minister for Communications in Malaysia, who, interestingly enough, had taken on this portfolio in 1978. So he was very much across these issues and the way in which it had all developed in Malaysia. Like Australia, they started with Telecom Malaysia. They had a very similar monopoly position to what we had. But they went very quickly from one player to six, and they have discovered that they are too small. As a matter of fact, two companies have actually handed their licences back because they were not viable.The minister said that further rationalisation is necessary. So, having gone to a very decentralised sort of structure, they have found they have gone too far and are coming more towards the way we are doing it. He suggested that, in terms of Malaysia, three companies would probably enable them to be internationally competitive. All of this suggests that Australia is very much on the right track as we move away from the monopoly to the duopoly and then to an open competition regime. My study of telecommunications—firstly in the US and then more recently in London and Malaysia—has offered many very useful insights into Australia's place in the world in this telecommunications revolution that will shape our place in the information age as we move into the 21st century.233513:38:002335O'Brien, Sen KerrySenator O'BRIEN8O6TASALP00—Today I want to speak about the issue which has occupied so much of the news this morning—that is, the actions on the Australian waterfront which took place late last night, around midnight, we are informed. It is simply an indication that Mr Reith has played his final card in what has been nothing more than a political campaign against the unions, and, frankly, it is a card dealt from the bottom of the deck. But the issue, as far as we are concerned, is far from over, and we will be pursuing it to the hilt.There is no doubt that Mr Reith and Mr Sharp, until he resigned in disgrace, have driven this process from day one, culminating in the actions today. The process started with the appointment of Mr Paul Houlihan by Mr Reith in March 1996, straight after the election. Mr Houlihan's job was apparently to help draft the Workplace Relations Act—and he was about crafting an act custom-made to launch an assault on organised labour. Mr Houlihan picked up a cool $20,000 for what was, as I understand it, a few weeks work.Mr Sharp then appointed Mr David Trebeck, a principal of ACIL Economics and a close colleague of Mr Houlihan, to conduct some consultancy research on his plan because his job was to build a strategy around a workplace relations model to get the Maritime Union of Australia, and, of course, Mr Houlihan was there guiding the process as part of the consultancy. Mr Trebeck's appointment followed discussions between former Liberal director Andrew Robb, Trebeck, Houlihan and the then minister for transport, Mr John Sharp. That work laid the foundations for the government's strategy.Mr Trebeck's work went to the questions of how best to target the MUA and how a stevedore might go about hiring an entire work force. Mr Reith's department became involved on 9 September 1996 when it was briefed by ACIL Economics. A senior officer in Mr Reith's department, Mr Darren Gillespie, met with Mr Chris Corrigan on 25 February 1997. They discussed the option of sacking Patrick's work force back then. Mr Corrigan also met with David Trebeck in Patrick's Sydney office, and, again, the option of sacking the work force was discussed.On 27 February 1997, Mr Reith received his plan. It was written by Workplace Relations—his department, that is—but it was designed by Trebeck, Houlihan and Mr Reith himself. Its design was to smash the union. The negotiated reforms option in the draft strategy, agreed with officers of the department of transport, was removed by Mr Gillespie without reference to the department of transport officers. He also increased the attractiveness of the confrontationalist option. It is clear Mr Gillespie had his instructions from Mr Reith, and he delivered the product. The Reith plan was exposed through a minute to him dated 10 March 1997. That minute said, in part:. . . stevedores would need to activate well-prepared strategies to dismiss their work force, and replace them with another quickly in a way that limited the prospect of, for example, the Commission ordering reinstatement of the current work force.That sounds very similar to exactly what happened at midnight last night. In 1997, the major stevedore, OOCL, was seeking to set up business in Melbourne. It made the fatal error of saying it was prepared to employ unionised labour. So the Howard government and the Kennett government had discussions, and OOCL was forced out. What did that company say? It said it was forced to move to Sydney, the rent was set too high in Melbourne. So competition is okay, but only if the government approves.The Reith plan was then progressively refined. Dr Stephen Webster was employed, along with a number of other consultants. Dr Greg Feeney, from the department of transport, told an estimates committee that he was instructed by Mr Sharp to employ Webster after a meeting of the cabinet subcommittee established to look at maritime issues. The membership of the committee was Mr Sharp, Mr Reith, Mr Fahey and Mr Costello. What did Dr Webster receive for his involvement in the consultancy? He received $95,000. An associate, Dr John Davies, who, we are told, was engaged by Dr Webster, picked up $96,000—this for all of 12 weeks work.Dr Webster received a bonus. He was also appointed to a position in Minister Reith's ministerial office. In August last year, on the recommendation of Dr Webster, Mr Sharp engaged Minter Ellison at a cost of $151,000 to get the legal basis for an attack on the union set up. In August last year, Australasian Research Strategies, the company of Liberal pollster Mark Texter, was commissioned to provide a report on community attitudes to the MUA and the docks, and that report cost $42,000. I might say, it is not the Liberal Party which is paying these consultancies; it is the Australian public.Mr Texter found that the waterfront was not a top-of-the-mind issue, but there was concern about international competitiveness. So another Liberal strategist, Jonathan Gaul, was engaged to develop a political communications strategy around the Texter research. What was the theme? The theme, which we have heard many times from Mr Reith, was that wharfies are privileged. They do not receive $96,000 for 12 weeks work, but they are privileged.While the Reith plan was being refined, so was that of the NFF. According to Mr Houlihan, `The window of opportunity came in August when we heard Patrick was losing money at Webb Dock.' In the meantime, Mr Reith tried to break the union in Cairns, but he failed. Mr Greg Bondar, the senior maritime adviser to Sharp at the time, was later quoted as saying—H15CAMPBELLSenator Ian Campbell—Mr Acting Deputy President, I raise a point of order. The honourable senator should be required to at least show the courtesy of addressing people in the other place by their correct titles.8O6O'Brien, Sen KerrySenator O'BRIEN—I said `Mr Reith'.H15CAMPBELLSenator Ian Campbell—You should refer to Mr Sharp and Mr Reith, and you should also perhaps refer to Mr Wran and Mr Turnbull in relation to their payments for their consultancies to the previous government on the sale of ANL.10000ACTING DEPUTY PRESIDENTThe ACTING DEPUTY PRESIDENT (Senator Hogg)—People should be referred to by their correct titles.8O6O'Brien, Sen KerrySenator O'BRIEN—On that matter, Mr Acting Deputy President, I believe that referring to Mr Reith as `Mr Reith' is sufficient. Are you saying that I need to give him his full title?10000ACTING DEPUTY PRESIDENTThe ACTING DEPUTY PRESIDENT—No.8O6O'Brien, Sen KerrySenator O'BRIEN—Thank you. Of the Cairns operation, Mr Bondar said, `It was initiated by Peter Reith's department, but I think, in a way, it got out of hand.' So Mr Reith, along with Mr Sharp, then attacked the employers—it was their fault, apparently. Mr Reith said that the government had created the framework, but no-one would use it. Mr Sharp said, `Employers often criticise us, but they are the ones who are responsible for not taking up the new opportunities.' That is, the existing employers would not play the game—the game that the government wanted them to play. Mr Richard Hein from P&O said, `We are not about deregistering the MUA.' Apparently he had been asked about that. He also said that P&O was `not about tearing up our agreement and setting out to destroy the MUA'. Apparently he had also been asked about that.This is when the National Farmers Federation came into play. Mr Reith's plan needed a compliant employer, but he could not find one. Mr Reith then moved to get a new employer, and the National Farmers Federation was willing to play. On 18 September last year, Mr Reith, Mr Sharp, Dr Webster and the secretaries to the departments of workplace relations and transport met in Melbourne. The key item on the agenda was the establishment of a new stevedore. Dr Webster told the group that the National Farmers Federation should be brought into the plan. Strangely enough, Ms Wendy Craik and Mr James Ferguson from that organisation were at the venue of the meeting within the hour—within the hour, as if they knew about the meeting in advance.UW4CRANESenator Crane—Well done; well organised.8O6O'Brien, Sen KerrySenator O'BRIEN—Meanwhile, Patricks continued to deteriorate and it played the Dubai card. I will take up that interjection because it is true, it was well organised and orchestrated. This was all part of the plan, Senator Crane; thank you for your confirmation. It went badly wrong. Corrigan originally denied Patricks involvement. But later he had to confess that he had been untruthful. Mr Reith might not have known about Dubai. He knew the workers were being trained; he just did not know where.Mr Houlihan started talks with Mr Corrigan in November of last year. The plan was set up over Christmas and Mr Reith was briefed on 6 January. On 29 January, at 2.30 a.m.—funny how these things happen the middle of the night—three buses carrying 45 security guards entered No. 5 Webb Dock. This was the arrangement between Patrick and the National Farmers Federation. Patrick and the National Farmers Federation are the common theme. The common theme is also doing things in the dark of night. This is the industrial relations style of Mr Peter Reith, and this is his waterfront reform style. We see its culmination today in the mass sackings of 1,400 workers.C16HEFFERNANSenator Heffernan—Better than Bob Hawke in Peter Abeles' pocket over the airlines.8O6O'Brien, Sen KerrySenator O'BRIEN—Senator Heffernan, I am interested to hear your intervention, because the fact of the matter is that the National Farmers Federation purports to represent farmers, and I know that you are one—at least part time. But I put a motion to the Senate yesterday on the pork industry. I saw Ms Wendy Craik in the building yesterday. But did I hear anything from Ms Craik about the pork industry? Not a word. The pork industry has 12,000 employees and additional people around the country. It appears to me that the National Farmers Federation was not interested in the issue of protecting the jobs of more than 12,000 people in rural Australia employed in the pork industry. Maybe that is the reason, Senator Heffernan, that a lot of people around the country are saying NFF stands for `not for farmers'.Frankly, the sackings that have taken place as a part of the government's plan, the government's conspiring with these employers and other organisations, are outside of its own law.H15CAMPBELLSenator Ian Campbell—Tell us about Bob Hawke and Peter Abeles conspiring, you hypocrite.8O6O'Brien, Sen KerrySenator O'BRIEN—Thank you. I will get you to withdraw that later. The sackings are outside the terms of the government's own law. The hypocrisy of this government in setting a law to protect the rights of people to belong to an organisation and then setting about getting them sacked for that very reason is hypocrisy at its ultimate. Sacking the people was also outside the terms of the stevedoring industry agreement that Patrick had as to how it should go about terminating an employee. So they were not interested in agreements they had signed. They were not interested in principle. They were interested implementing the plan.We had a conspiracy to breach the Workplace Relations Act, we had a conspiracy to breach the agreement and there was a failure to abide by the terms of that agreement. Did Mr Reith know about the plan? Of course he did, because he said a couple of things in his press conference today. He said, `What we have been doing in putting in place our policy strategy'—H15CAMPBELLSenator Ian Campbell—You are a hypocrite.10000ACTING DEPUTY PRESIDENTThe ACTING DEPUTY PRESIDENT—Order! Senator Campbell, I ask you to withdraw that; it was unparliamentary.H15CAMPBELLSenator Ian Campbell—Mr Acting Deputy President, do you intend asking this person from the opposition to withdraw his use of the word `hypocrisy' on a number of occasions? Indeed, Mr Acting Deputy President—10000ACTING DEPUTY PRESIDENTThe ACTING DEPUTY PRESIDENT—It is not the word `hypocrisy'.H15CAMPBELLSenator Ian Campbell—I think of the word hypocrisy to describe a Labor Party senator who gets up and talks about sacking workers and conspiracies in the dead of the night when they stood by and did not say a word when Sir Peter Abeles and Bob Hawke sacked all the Australian airline stewards. That is nothing short of absolute hypocrisy.10000ACTING DEPUTY PRESIDENTThe ACTING DEPUTY PRESIDENT—Order! Senator Campbell, you have been asked to withdraw.H15CAMPBELLSenator Ian Campbell—I withdraw.10000ACTING DEPUTY PRESIDENTThe ACTING DEPUTY PRESIDENT—Thank you.8O6O'Brien, Sen KerrySenator O'BRIEN—Mr Reith said today, `What we have been doing is putting in place our policies,' and he meant his strategy. He said also, `Discussions have intensified in the last few weeks on the redundancy issues.' So he was in the cart, he knew what was happening. He might not have known the exact timetable but he knew what was happening. He knew that these people were to be dis missed and he was part of the plan. It was his plan, in fact.But what else has been happening? Mr Reith has been talking about rorts on the waterfront. Let me tell the Senate what happened in my state today. In Tasmania there are only about 30 Patricks employees out of the 1,400 that have been sacked. They have all been sacked. In Burnie there was a ship in port. The people were sacked at midnight, when the ship was loaded with cargo—no thought about that; they were just sacked. No plans in place. What was on the ship? A valuable cargo of horses. Who was interested? The RSPCA—not Patricks, not the government. So what happened? These people who had been sacked, these people who were supposed to be involved in nicking off whenever they could, what did they do? They had been sacked, they were not getting any money, but they went in and unloaded the horses.Last week, at that very terminal, the employees of Patricks achieved a cargo handling rate, on average over the week, of 33 containers per hour. Did they get thanked for that? This is the performance of people who were so inefficient they had to be sacked. This is the performance of this employer, so unprincipled that it is prepared to reward the good work of its workers by sacking them. That is what Patricks is prepared to do.What happened in Brisbane today? The complicity of the Queensland Government, through the Port of Queensland Corporation, resulted in guards on the road leading into the Fisherman Islands wharf, in Brisbane. What did they do? They refused admission to 70 P&O workers when they arrived to start work. They were not employed by Patricks. They were going to stop them. (Time expired)233913:55:002339Crane, Sen WinstonSenator CRANEUW4WALP10—I rise to invite another of the kings of slur, Mr Duncan Kerr, in the other place, to take the 15 steps of courage out of that place and repeat some of the things that he has said with regard to my family and me, or to apologise. He has a simple choice. In the time I have, I want to deal with some of these things. Despite the personal explanation I made, despite the answer that was given by Senator Robert Hill, Mr Kerr continues to slur my family and me—and he does it in coward's castle, under privilege of parliament. I repeat: I invite him to step outside or to apologise.The first point I would make goes back to 3 March. After a full explanation in the Senate by our leader, Senator Hill, and a personal explanation by me, Mr Kerr still went into the other chamber and said:My question is to the Prime Minister. Is the Prime Minister aware that the Minister for the Environment has acknowledged in the Senate that an NHT grant—a Natural Heritage grant—benefited Senator Crane?That was said despite what Senator Hill had said, and also what I myself had said:When the applications went out—they were sent out by the local committee—my son, who now runs the property, did not respond. We did not put in any application whatsoever for funding. If you had listened carefully to Senator Hill's explanation, you would have got that. If you can read and you read the letter on the table, you will get it twice. Also, our property will receive no funding whatsoever from the Natural Heritage Trust.After I had said that, what happened the next day? Senator Bishop, who I do not believe wrote the question—I believe he was forced into saying it—referred to the `Crane project' and asked, referring to me, `How much funding did you approve?' Senator Hill replied:The honourable senator goes very close to misleading in that question but not quite as close as Mr Kerr yesterday.Even though there were two answers referring to the matter and putting the public record straight, these people continued with it.What happened, then, on 31 March, just last week? You on the other side may talk about the dark of the night. If ever there was an occurrence in the dark of the night, and a slur and a trying to hide behind something, this is it. Typical of what happened with Senator Robert Ray, Mr Kerr then tried to denigrate us. Realising that we had received no money, we had made no application, what did he do? He said:Senator Crane comes in and says that he is an expert on landcare groups.Let me tell Mr Duncan Kerr, `Wrong. I did nothing of the sort.' But I will say that I have had a lot of experience in Landcare and I am very proud of my record in promoting it. Then he said:But Senator Crane apparently did not even know that his family was involved in a landcare group right in his own backyard.I say to Mr Duncan Kerr, `Wrong again. We were among the people that started the Landcare group there.' He continued his slur program. He said:Some expert! He did not even know that his particular property intersected with a group that was funded.Of course I did not damn well know. I knew nothing about it. What is more, there had been no funds granted at the time when this matter came up. Mr Kerr continued:So there he was in there with the minister, rorting Western Australian grants to go to coalition held seats . . . Once again, that is absolutely, totally wrong. And the slur king is at again, as are many of his colleagues on the other side of the chamber.In the short time I have available, I would like to quote a couple of things from a letter from the Ravensthorpe Land Conservation District Committee, of which the chairman is Mr Andrew Duncan and the honorary secretary is Mrs Madeleine Norman. Rick Farrell, the catchment support officer, the signatory to the letter, says in relation to the study:In the course of the study, John Platt spent time in the catchment surveying, visiting individual locations and meeting with landholders. I accompanied John in the field on some occasions and attended all meetings between the group and himself. At no time did either John Platt or myself visit your property. John Platt informed me in the course of a telephone conversation this afternoon, that he had no recollection of meeting with either your son or daughter-in-law (Paul or Nikki) while engaged in the study.I say once again to these people, `It is about time to take the 15 steps of courage out, or to apologise. You have a lot of people in this place to apologise to, including the late Senator John Panizza, whom you very seri ously slurred.' I am pleased to see Senator Peter Cook over there, because he was the instigator of that slur. I ask, about the process and what those people do in terms of their actions, `Where are your policies? Where are you going to put up?'We have just heard from Senator O'Brien, with not one constructive comment about what the Labor Party intends to do with regard to the waterfront but just carrying on with the continual slur.5L6FERRISSenator Ferris—In the muck bucket again.UW4Crane, Sen WinstonSenator CRANE—In the muck bucket, absolutely, as Senator Ferris has said. You can go on and read this letter and what is in there. (Time expired)Questions Without Notice234023402340O'Brien, Sen KerrySenator O'BRIEN8O6TASALP00—Madam President, my question is addressed to Senator Hill representing the Prime Minister. Minister, are you aware that the Workplace Relations Act requires that no employee be sacked because they are union members, and that any employer proposing to sack more than 15 employees must advise the CES before doing so? Are you also aware that the stevedoring industry award requires any employer to notify their employees and their union of any definite decision that is likely to have a significant effect on employees, including termination of employment, and obliges the employer to discuss such changes before they come into effect? Can you advise the Senate what steps the government took to satisfy itself that these provisions had been complied with before you supported Patricks' decision to dismiss 1,400 workers to replace them with another work force?2340Hill, Sen RobertSenator HILLBH4SALPEnvironment10—Finally the Labor Party has come out of its shell. This dispute has been taking place for months—and how many questions have we heard from the Labor Party on it? Not one. There has been no interest until today. Today, however, they come out of the shell and in solidarity say, `We are alongside the workers who have lost their jobs.' It is a bit late, Senator, to be alongside the workers who have lost their jobs.What the Labor Party should have been doing for years was encouraging greater productivity on the wharves. It should have been looking for an efficient waterfront, an internationally competitive waterfront, a waterfront where not only the jobs of stevedores would be assured but also where Australia would benefit through lower export costs and all other Australians would therefore benefit indirectly as well.So, Senator, it is too late. You have let your fellow workers down because you allowed these rorts on the waterfront to continue for 13 years whilst you were in office. You spent $420 million, I concede, but achieved no increased productivity as well. And that is the problem, Madam President. That is why these workers lost their jobs, because they have not been able to deliver an internationally competitive product. If Australia does not deliver internationally competitive products we all fail, Madam President.On the detail of the question that was asked, as I understand it, what occurred was that the contract with the labour employing company was terminated, so technically, Senator, I regret that you are in error in the way that you put your question.Senator Carr interjecting—10000PRESIDENTThe PRESIDENT—Order! Senator Carr, stop shouting.BH4Senator HILL—But, apart from that matter, the fundamental issue is that no-one will be assured of keeping his or her job unless they are competitive, unless they perform at an internationally competitive level. That is what globalisation is all about. The Labor Party might not like that but, if Australia is to grow—AW5CARRSenator Carr—You are a disgrace.10000PRESIDENTThe PRESIDENT—Senator Carr, stop shouting.BH4Senator HILL—if we are to provide long-term, secure jobs and benefits for all of the community, then you have to face up to that reality. Thirteen years of Labor failed to deliver on the waterfront. They turned a blind eye to the rorts.Senator Carr interjecting—BH4Senator HILL—People like Senator Carr turned a blind eye to the rorts—10000PRESIDENTThe PRESIDENT—Order! Senator Carr, I have already twice asked you to stop shouting during this answer. I warn you not to continue to do so.BH4Senator HILL—Thirteen years of Labor government, turning a blind eye to the rorts on the waterfront. Why? Because of the solidarity of the union movement. Why? Because of the financial dependence of the Australian Labor Party on the union movement. That is why you permitted these rorts to take place for 13 years whilst in government.Now there is a government in place that recognises that that is not the future for a competitive Australia. Everyone has to shape up, including the wharfies, but they were not prepared to do so. You know that: that is why you did not ask any questions during the dispute. You knew that: that is why you showed no interest in the dispute until today.Madam President, we, of course, regret that anyone loses a job. But what this government is about is creating new jobs. There have been 220,000 new jobs since we came to office. We are proud of that, Madam President. But we have achieved it because we recognise that Australia has to be competitive and no longer can Australia afford the sorts of rorts that you allowed on the waterfront during 13 years of Labor government.2341O'Brien, Sen KerrySenator O'BRIEN8O6TASALP00—Madam President, I ask a supplementary question. Minister, we will wait to see about this alleged arrangement between a labour hire company and Patricks, but, given that the Prime Minister gave a commitment to parliament that the government would only support legal actions on the waterfront, how can the government justify its continuing and generous support for the illegal action because, you see, the dismissal is because they are union members?2341Hill, Sen RobertSenator HILLBH4SALPEnvironment10—Madam President—Opposition senators interjecting—10000PRESIDENTThe PRESIDENT—Order! Shouting across the chamber is disorderly and should not occur. BH4Senator HILL—Of course, the premise to the supplementary question is false. They did not lose their jobs because they are unionists. They lost their jobs because they were not prepared to provide a competitive service. All Australians suffer when the waterfront is not internationally competitive. They had years to lift their game, and you could have required them to lift their game but you did not. You turned a blind eye, because they are your masters.In the end, the union movement is your master, and that is why they lost their jobs. You are as much responsible for the loss of these jobs as anyone else, including their direct masters within the union movement. If your solidarity had produced an efficient waterfront, then these men and women would have their jobs today. And for that, you, the Labor Party, should stand condemned.Distinguished Visitors234210000PRESIDENTThe PRESIDENT—Order! I draw the attention of honourable senators to the presence in the chamber of a parliamentary delegation from the National Council of Provinces of the Republic of South Africa, led by the Chairperson of the National Council of Provinces, Mr Patrick Lekota. On behalf of all honourable senators, I have pleasure in welcoming them to the Senate and to this country and trust that their visit will be both informative and enjoyable.UNKNOWNHonourable senatorsHonourable senators—Hear, hear!10000PRESIDENTThe PRESIDENT—With the concurrence of senators, I invite the Chairman to take a seat on the floor of the chamber.Mr Lekota was seated accordingly.10000PRESIDENTThe PRESIDENT—I also draw the attention of honourable senators to the presence in the President's Gallery of a parliamentary delegation from the National Assembly of South Africa, led by the Chairman of the Portfolio Committee on Welfare, Mr Saloojee. We welcome you to this chamber and to the country and trust that you too will have an enjoyable and worthwhile visit.UNKNOWNHonourable senatorsHonourable senators—Hear, hear!Questions Without Notice2342LI4PATTERSONSenator Patterson—Madam President, I raise a point of order on the level of interjections. It has been totally intolerable. We could not hear the answer.23422342MacGibbon, Sen DavidSenator MacGIBBONYH4QLDLP10—My question is to the Leader of the Government in the Senate, and it relates to today's historic breakthrough in improving efficiency and competition on Australia's waterfront. I say that as the only member of this chamber who has actually worked on the wharves and shifted cargo—and shifted it at twice the rate of the waterside workers. Will the minister outline how changes to Australia's waterfront will improve national productivity and competitiveness? How do the reforms of this government compare with the non-achievements of the Labor government that preceded it?2342Hill, Sen RobertSenator HILLBH4SALPEnvironment10—That is an excellent question because it really gets to the nub of the issue, and that is: how does the performance of this government compare with that of the last? Those on the other side talk about unemployment. They gave us one million Australians out of work. They gave us unemployment rates of 17 per cent.Senator Cook interjecting—BH4Senator HILL—Senator Cook, what you should understand is that we now have the lowest unemployment rates in Australia since the recession we had to have; since Mr Keating's unnecessary recession that threw hundreds of thousands of Australians out of work. We have now achieved the best levels of employment in this country because we recognise that Australia has to be competitive, and that requires difficult decisions. Just do the comparison. Under Labor on the waterfront, average crane rates: 17 containers an hour. What is world's best practice? About 30 an hour. Seventeen containers and the Labor Party says it is okay. Container terminals: overmanned by 50 per cent under Labor. Wage rates: some $72,000 average for very few hours a week through massive rorting.Opposition senators interjecting—10000PRESIDENTThe PRESIDENT—Order! The level of noise on my left is intolerable and in breach of the standing orders.BH4Senator HILL—This is what Labor condoned for so long.Senator Cook interjecting—10000PRESIDENTThe PRESIDENT—Senator Cook! Senator Cook, cease interjecting.BH4Senator HILL—Labor condoned it. It spent $420 million on the waterfront for no improved productivity at all. What was its alternative to the problems as an alternative government? They said, `We'd bring Bob Hawke in to solve it.' They would bring Bob Hawke in! Bob Hawke was the one who spent the $420 million for no better productivity. So, after two years in opposition, two years of trying to think of a policy, all they could do was say, `We'd bring in Bob Hawke to arbitrate.' No constructive alternative at all.The reforms that we want to see upon the waterfront will end overmanning and restrictive work practices. They will lead to a benchmark of 25 crane movements per hour. They will reduce costs to exporters and importers.Senator Carr interjecting—BH4Senator HILL—All Australians will benefit from that increased productivity, and the workers will also be guaranteed proper redundancy payments which, Senator Carr, are believed to be in the vicinity of about $250,000 a person. That gives some indication of these sorts of rorts that you protected, that the Labor party protected, on the waterfront for so long.The reasons that we have been able to achieve reforms on the waterfront are of course because of the historical changes in the Workplace Relations Act—the fact that the secondary boycott provisions will return. We stand very grateful to Cheryl Kernot, the new comrade, for helping us put in place reforms that allow the waterfront dispute to be quarantined. Of course, the Labor Party answer is, `You don't quarantine a dispute.' You don't quarantine a dispute, do you, Senator Carr? You try to take out all the waterfront workers. You try to wreck the industry and provide that sort of collective solidarity. Fortunately for Australia, the Workplace Relations Act has meant that this dispute has been quarantined. The workers have had more than adequate chance to demonstrate that they are interested in real productivity and they failed. (Time expired)LI4PATTERSONSenator Patterson—Madam President, on a point of order: it was impossible again to hear Senator Hill's answer. I ask that you call the other side to order.10000PRESIDENTThe PRESIDENT—I am aware of that, Senator Patterson.2343MacGibbon, Sen DavidSenator MacGIBBONYH4QLDLP10—Madam President, I ask a supplementary question. As an old seaman and waterside worker, could Senator Hill advise the Senate of what changes Labor has in mind to improve the waterside of this country or economic conditions in any way?Opposition senators interjecting—10000PRESIDENTThe PRESIDENT—Order! Order, Senator Hill! I did not hear the supplementary question. Senator MacGibbon, would you repeat the supplementary question? I did not hear a word of it.YH4Senator MacGIBBON—As a old waterside worker and seaman in former times, could I ask Senator Hill if he has any knowledge of—Opposition senators interjecting—10000PRESIDENTThe PRESIDENT—Order! The behaviour on my left is persistently in breach of the standing orders and obviously wilful, which I have noted. Senator MacGibbon, would you ask your question?YH4Senator MacGIBBON—Twenty-five tonnes an hour of bagged sugar for a gang of four against 7½ tonnes an hour with a gang of 14 for the waterside workers. Is Senator Hill aware of any current Labor policies with respect to reform of the waterfront?2343Hill, Sen RobertSenator HILLBH4SALPEnvironment10—I can talk about our policies but I can assure you there is nothing we can learn from this Labor Party in terms of constructive policy because after two years they have none. Two years in opposition and no policies.Senator Conroy and Senator Jacinta Collins interjecting — 10000PRESIDENTThe PRESIDENT—Order! Senator Conroy and Senator Collins, you are both in breach of the standing orders.BH4Senator HILL—How many questions are we getting on the big issues? I said on jobs how many questions are we getting? Next to none. How many questions on the waterfront? Until today, none. In fact, until today we did not even know who represented the shadow minister for waterfront in this place because she had not asked a question—not interested in the issues.Madam President, all we know about the Labor Party is: on Wik, they would solve that by holding a meeting; on the problems in Asia, Senator Cook said he would hold a series of seminars; on the problems of the waterfront, they said they would bring in Mr Hawke to arbitrate. This is not a Labor Party that has learnt a thing from being thrown out of government. This is not a Labor Party that has demonstrated in any way that it is interested in the real issues and challenges facing Australia. (Time expired)23442344McKiernan, Sen JamesSenator McKIERNAN1I4WAALP00—My question is directed to the Minister representing the Prime Minister. Minister, do you recall the miners from Cobar who lost their jobs and their legal entitlements seeking a $9 million loan from the government to fund their redundancies and other legal entitlements? Has the government provided any financial assistance in response to that request? Minister, how do you justify providing up to $250 million of financial support for the sacking of 1,400 workers who had jobs, while refusing to provide any assistance at all to miners at Cobar who lost their jobs?2344Hill, Sen RobertSenator HILLBH4SALPEnvironment10—At least it is pleasing that after two years the Labor Party has finally decided to address issues of unemployment. With its record in government in relation to unemployment, it is not surprising that it has taken it a while to get around to it. There is a clear distinction between these two issues.Opposition senators interjecting—10000PRESIDENTThe PRESIDENT—Senators on my left will cease interjecting.BH4Senator HILL—One is an industry wide problem providing an industry wide solution. It relates to a government responsibility to ensure that our wharves are internationally efficient and competitive so that Australia can grow and provide ongoing and secure jobs and all the benefits that flow from a country that is dependent on trade being able to trade efficiently. That is why the government is prepared and sees it as a responsibility to assist in this issue.Obviously we regret what happened at Cobar in relation to the failure of a company and the suffering of individuals as a result of that, and I might say, the highly irresponsible action in relation to the proprietors of that company. The government is concerned about that issue.1I4McKIERNANSenator McKiernan—Double standards!656FORSHAWSenator Forshaw—What are you going to do about it?BH4Senator HILL—This lot, because they are not really interested in jobs, have not been reflecting on it, but the government has referred it to the next meeting of nationwide labour ministers and we are looking for constructive ways to assist in this type of circumstance.It is not easy in a circumstance where an individual corporation fails to the extent to which the taxpayer should pick up the cost. I do not remember the Labor Party assisting in similar circumstances such as this in its 13 years of government but, of course, this Labor Party has a short memory. It has learnt nothing from its two years in opposition; it has learnt nothing from being so unceremoniously thrown out of office, in part because of its record of high unemployment. Anyway, I applaud the fact that honourable senators on the other side are now finally prepared to address issues of employment, but in doing so they may recognise that, as I said before, this government has now got unemployment down to the lowest level since Labor's recession that we had to have.Senator Carr interjecting—BH4Senator HILL—Employment is moving in the right direction: 220,000 new jobs, Senator Carr, since this government came to office and that is something that this government is proud of. But this government is not going to rest on its laurels. This government is putting in place a set of policies that will enable a continuation of the growth of employment in this country—good sustainable long-term jobs—and with that we will be meeting one of the primary responsibilities of any government, in stark contrast to the failure of 13 years of Labor.2345McKiernan, Sen JamesSenator McKIERNAN1I4WAALP00—I ask a supplementary question, Madam President. That was a confusing answer, Minister. Can I remind you that my question asked about $9 million for workers who were put out of a job and about $250 million which is able to be found for a corporation which has not yet failed. Minister, how is it that your government has been able to find $250 million to sack waterfront workers who have jobs, yet you have not been able to find a red cent to help those miners who were tossed out of their jobs? Answer the question.2345Hill, Sen RobertSenator HILLBH4SALPEnvironment10—Again, it is a misunderstanding. The government is not paying for these redundancies; the taxpayer is not paying for these redundancies. If you read the press release, you will learn why. The industry will be paying for the redundancies, and it is pleasing to see that it will be absorbed from within the industry and the cost per container will not rise as well. It is a further demonstration of what can be achieved in terms of a competitive waterfront.It is an entirely different situation—and, Senator McKiernan, I regret that you cannot understand this—to the economic failure, the collapse, of one single corporate business. When has the taxpayer come in and picked up the tab in those circumstances in the past? This government at least is sensitive to that problem and is looking towards a longer-term solution, which is more than we ever received from the Labor Party in 13 years of government.23452345Crane, Sen WinstonSenator CRANEUW4WALP10—My question is to the Minister representing the Minister for Workplace Relations and Small Business, and this question is for the benefit of the residents of the policy free zone on the other side of this chamber. I refer the minister to the pursuit by the Maritime Union of Australia of a politically motivated attack on Patrick stevedoring. Is the minister aware of any threats of further industrial action? What will be the impact on Australia's reputation if this action is not condemned? Will the minister outline the government's proposal to provide a safety net to those families who are affected by the government's reform agenda?2345Alston, Sen RichardSenator ALSTONLD4VICLPCommunications, the Information Economy and the Arts10—This has really flushed them out, hasn't it? After months of silence, after months of not being prepared to defend the indefensible, opposition senators have been flushed out. You have been flushed out of your sewer, and what is your attitude now?There is a simple question you have got to answer. The question is: are you in favour of the wharves being cleaned up or not? You will talk about everything else, but you are not interested in productivity, you are not interested in jobs, you are not interested in better export performance; you are simply interested in doing what your union masters want you to do. We are very happy that you have locked in behind some of the greediest thugs in this country—Senator Conroy interjecting—10000PRESIDENTThe PRESIDENT—Order! Senator Conroy, you are persistently and wilfully interjecting in a way which is totally in breach of the standing orders, and you should cease.LD4Senator ALSTON—There was a question asked earlier which was, `Why have these workers been sacked and isn't it illegal?' The fact is that they are not workers. The difference between Senator Parer and a wharfie is that Senator Parer works for a living. The reason these people have been put off is that they will not do a fair day's work for much more than a fair day's pay. These people are getting $100,000 a head, but most of them would not work in an iron lung.I took great exception to Senator MacGibbon's statement that somehow he was the only one who was aware of what went on at the waterfront. As a former member of the Builders Labourers Federation and also as a dock hand, many years ago I saw what wharfies got up to. They would deliberately swing the crane and smash the cargo over the side of the hull to find out what was worth pinching. That is what they used to do and they have not changed a bit. They are not interested in working for a living. That is why they got the chop.Opposition senators interjecting—10000PRESIDENTThe PRESIDENT—Order! The level of noise in the chamber is far too high.WP6LIGHTFOOTSenator Lightfoot—Madam President, I have a point of order. As a former member of the Waterside Workers Federation, I have a mental preoccupation with the answer to Senator Crane's question. I simply cannot hear because of the noise on the other side, and that is obviously against standing orders. I do want to hear the answer.10000PRESIDENTThe PRESIDENT—I warn senators on my left to cease interjecting as they have been doing during this and previous answers. I call Senator Alston.LD4Senator ALSTON—The fact is that it is a historic moment for Australia. We have been an international laughing stock, thanks to the opposition's support for the indefensible. Madam President, can I just remind you of the incredible double standard we have in this exercise. Here they are wringing crocodile tears for people who do not know what a decent day's work is, but what were they saying back during the pilots' strike? You had Bob Hawke: `It's a different game this time, boys. It's war. They're exceptionally greedy.' Bob Collins: `What I overwhelmingly want to do is go out and kick a few airline pilots to death.' Senator Richardson: `The government will not be stood over by bushrangers.' You brought in the army because it was the wrong union. That was your problem. You were not interested in tidying up Australia. If you were interested in reforming the airline arrangements, you would be just as interested in curing this problem. This has been a running sore for more than half a century and you have done nothing at all about it. That is where you stand condemned. Not only do you go out there—RF4COOKSenator Cook—That is a lie and you know it.LD4Senator ALSTON—If you want to talk about lies, you talk about that bloke over there who got up yesterday in the Senate and told the greatest pack of lies you have ever heard.10000PRESIDENTThe PRESIDENT—Order! The level of noise in the chamber is absolutely unacceptable. I am advised that the ABC is being swamped with callers saying it is absolutely impossible to hear questions or answers because of the noise in the chamber. The level to which standing orders are being breached by senators is unacceptable, and some senators are absolutely persistently and wilfully breaching the standing orders.WW4KEMPSenator Kemp—Madam President, on a point of order: Senator Cook called out `liar' in the context of this answer, and I think he should be asked to withdraw.4J4SCHACHTSenator Schacht—Senator Alston said it, too.10000PRESIDENTThe PRESIDENT—If either of you used that word, it should be withdrawn. I did not hear it used. Senator Cook?RF4COOKSenator Cook—I withdraw the word `liar' and—10000PRESIDENTThe PRESIDENT—That is sufficient, thank you.RF4COOKSenator Cook—I insert the word `dishonest'.10000PRESIDENTThe PRESIDENT—Senator Alston if you used that word, you should also withdraw it.LD4Senator ALSTON—I used the word `lies', and I will tell you why.Opposition senators interjecting—10000PRESIDENTThe PRESIDENT—Order! Senators on my left will cease shouting. None of you has the call.LD4Senator ALSTON—In question time, a few days ago I said that Senator Richardson was the Minister for Transport and Communications when he was the director of a radio station. Senator Ray interjected and said he was not. The fact is that of course he was and you knew it.10000PRESIDENTThe PRESIDENT—Order! Senator Alston—Senator Alston interjecting—Senator Robert Ray interjecting—10000PRESIDENTThe PRESIDENT—Order! Senator Alston, cease interjecting! I asked you to withdraw a word if you had used a word that was unparliamentary.LD4Senator ALSTON—I used the word `lies'.10000PRESIDENTThe PRESIDENT—I ask you to withdraw.LD4Senator ALSTON—I withdraw.10000PRESIDENTThe PRESIDENT—You may continue with your answer to the question.LD4Senator ALSTON—Thank you, Madam President. The important thing to remember is that the redundancy payments for these people who have barely done an honest day's work in years ranges up to $239,000 with an average of—Opposition senators interjecting—LD4Senator ALSTON—All right. Get out there and defend them. You get out there and defend this national organiser Jim Tannock who said that `the union was preparing for a long battle, one of the greatest industrial disputes Australia has ever seen'. You are right in behind them now. You support them, don't you? You are not interested in reforms. You are not interested in Australia's reputation. You are not even interested in the very generous redundancy packages that they are being offered. No, you are simply doing what you are told by your union masters. You are an absolute disgrace. What is happening on the waterfront has been a disgrace for years, and we are committed to reforming it.2347Crane, Sen WinstonSenator CRANEUW4WALP10—Madam President, I ask a supplementary question. In asking the supplementary, I declare an interest in this as a member of a family partnership which has product moved both ways across the wharf and also ensured our live sheep were loaded back in 1978, which is 20 years ago. I ask: will the minister inform the Senate of progress of much needed reforms on the Australian waterfront?RF4COOKSenator Cook—Scab!YW4MACDONALDSenator Ian Macdonald—You're the scabs; you brought in the troops.10000PRESIDENTThe PRESIDENT—Order! Senators will not shout across the chamber.UW4Senator CRANE—Madam President, I ask that that comment from Senator Cook in calling me a scab be withdrawn.10000PRESIDENTThe PRESIDENT—It is an expression that is unacceptable in the chamber, Senator Cook. I would ask you to withdraw it.RF4COOKSenator Cook—If it is unacceptable in the chamber, Madam President, I withdraw it. But someone who substitutes their labour for the work of a union member, everyone knows what that is.10000PRESIDENTThe PRESIDENT—Order! The level of intervention is absolutely absurd. Most senators cannot hear the questions or the answers. Those who are trying to listen certainly cannot either.ZF4CROWLEYSenator Crowley—Madam President, I raise a point of order. As the rules seem to be going, if one person in this chamber says `scab' and has to withdraw it, I think that should apply to Senator Ian Macdonald too.10000PRESIDENTThe PRESIDENT—If you used it, you should withdraw the expression, Senator Macdonald.YW4MACDONALDSenator Ian Macdonald—I was just talking about Mr Hawke bringing in the troops.10000PRESIDENTThe PRESIDENT—Senator Macdonald, do not debate the issue.YW4MACDONALDSenator Ian Macdonald—No, I won't.10000PRESIDENTThe PRESIDENT—I ask you to withdraw.YW4MACDONALDSenator Ian Macdonald—I apologise to Mr Hawke for calling him a scab for bringing in the troops.10000PRESIDENTThe PRESIDENT—Senator, I ask you to withdraw.YW4MACDONALDSenator Ian Macdonald—I apologised. I withdraw.2347Alston, Sen RichardSenator ALSTONLD4VICLPCommunications, the Information Economy and the Arts10—The decision by Patrick stevedores to restructure their business is an historic moment. Patrick has terminated existing contracts with previous labour hire companies. They have offered very generous redundancy packages to the extent that all displaced employees of the relevant companies will be eligible to receive full leave and redundancy entitlements. As Senator Hill rightly pointed out, the redundancies will be funded by an industry levy. Nothing could be fairer than that, and yet this crowd over here are not interested in the slightest.They are out there playing on the periphery. They are trying to argue that somehow this is all unfair. If you want to get behind people who are not prepared to do a fair day's work, you will get your reward, because you know that this has been going on for so long now that it could only have ever achieved reform under a coalition government. If you lot had been in government, you would have brought in the troops on day one, as you did with the pilots, because you would have had no choice.23482348Ray, Sen RobertSenator ROBERT RAYUI4VICALP00—I direct my question to Senator Kemp representing the Treasurer. Minister, since you delivered the budget speech in this place on behalf of the Treasurer on 13 May 1997, what additional commitments has the government made to budget forward outlays?2348Kemp, Sen RodSenator KEMPWW4VICLPAssistant Treasurer10—We have of course, Senator, brought down a very responsible budget, which you are fully aware of. As the senator would know, we brought down a very responsible budget which was widely welcomed in the community overall. Indeed, the nature of this budget has led to the forward estimates showing that we will return a surplus in this term of government. As I said, this has been very effective, among other things, in taking the pressure of interest rates. Senator Ray, there have been, as you would be aware, some further additional commitments in the budget. Senator, I will get a list and provide them to you.2348Ray, Sen RobertSenator ROBERT RAYUI4VICALP00—Madam President, I ask a supplementary question. Are you really telling the chamber that, as Assistant Treasurer, you cannot tell this Senate what the additional outlays from May last year through to the current time are? Are you really saying that, as Assistant Treasurer who, to use Senator Alston's words, has maybe never done a day's work in your life, you cannot answer that question? Whilst you take that part on notice, you might get the additional information for me of what offset in savings have been found to pay for these additional commitments?2348Kemp, Sen RodSenator KEMPWW4VICLPAssistant Treasurer10—As I said, we had to deal with the underlying budget deficit that Labor brought in. Since the budget, the government has agreed to some modest additional spending in the high priority areas and to vary the implementation of some previously announced measures. These measures have been responsible.UI4RAYSenator Robert Ray—Name one.WW4Senator KEMP—They have been designed to strengthen Australia's economic performance through the measures announced in the government's industry policy statement and the employment package, to mention two, Senator. They have also shown that the government is responsible to community needs and concerns. However, the vast bulk of the fiscal consolidation put in place by the government remains in tact. Moreover, and most importantly, the government remains on track to deliver its fiscal commitments—a return to the underlying surplus in the 1998-99 and a halving of—(Time expired)23482348Murray, Sen AndrewSenator MURRAY3M6WAAD00—My question is to the Minister representing the Minister for Workplace Relations and Small Business. Minister, are you aware that section 170CK of the Workplace Relations Act prohibits an employer sacking an employee because they are a member of a union; that section 170MU prohibits an employer from sacking an employee for engaging in protected industrial action; and that section 298K prohibits an employer from sacking an employee for seeking better working conditions? Is it not the case that the decision of Patrick stevedoring to sack its 1,400 workers appears to breach all three of these key civil right protections in your Workplace Relations Act? What action has the government taken—Honourable senators interjecting—10000PRESIDENTThe PRESIDENT—Just a moment, Senator Murray. Would you mind waiting, I cannot hear you.3M6Senator MURRAY—What action has the government taken to ensure that Patrick stevedoring is not breaching these freedom of association provisions of the Workplace Relations Act designed to protect the civil rights of employees?Government senators interjecting—10000PRESIDENTThe PRESIDENT—Order! Senators on my right will cease interjecting.3M6Senator MURRAY—And in offering a $250 million taxpayers' liability to employers to sack their workers, isn't the minister paying for major breaches of his own act?2349Alston, Sen RichardSenator ALSTONLD4VICLPCommunications, the Information Economy and the Arts10—I am very disappointed that Senator Murray has only just come into the chamber, Madam President, I thought that he should have been here from the beginning. If he had been—UI4RAYSenator Robert Ray—You've missed four divisions, you twit!LD4Senator ALSTON—I would rather be a twit than a liar.5K4FAULKNER Senator Faulkner—You are both a twit and a liar.10000PRESIDENTThe PRESIDENT—Order! Senator Faulkner, withdraw that.5K4FAULKNER Senator Faulkner—I withdraw the fact that I said—10000PRESIDENTThe PRESIDENT—And cease interjecting.Government senators interjecting—5K4FAULKNER Senator Faulkner—I have been asked to withdraw. And I am going to withdraw the fact that I called Senator Alston a twit and a liar.10000PRESIDENTThe PRESIDENT—I have asked before today for question time to proceed with a little more attention to the standing orders—UI4RAYSenator Robert Ray—I withdraw twit.10000PRESIDENTThe PRESIDENT—but they are still being breached. It is making it impossible for people to hear and I don't think that is fair to the listeners.LD4Senator ALSTON—I was really in the process of pointing out that Senator Hill and I have both indicated that the taxpayer is not picking up the tab for this redundancy arrangement.Opposition senators interjecting—10000PRESIDENTThe PRESIDENT—Order! There is an appropriate time to debate this issue.LD4Senator ALSTON—I know senators opposite don't want to believe certain things because they found $420-odd million dollars under the bloke that they would bring in to solve this problem with another little waterside summit. But the fact is that this will be funded by an industry levy. That is the first point.The second point is that obviously Senator Murray has been on the hotline for receiving Bob McMullan's press releases because Senator McMullan argues that this is a breach of section 170 subsection 2(b): that the sackings are illegal because the employees are trade union members. They are not being sacked because they are unionists. They are being sacked because they will not work. They do not know how to spell it. It is a contagious disease they are terrified of catching. They do not want to be caught out having to do an honest day's work for an honest day's pay. I mean, $100,000—these are not your average workers. What are average weekly earnings? They are about a third of that. These are the silvertails of the union movement. Get yourselves locked in right behind them.Senator Jacinta Collins interjecting—LD4Senator ALSTON—Senator Collins, who has been interjecting and saying, `What's wrong with a bit of solidarity?'—in other words, `My union right or wrong.' That is your approach, isn't it? You are not interested in the slightest in getting waterfront reform. You are not interested in increased productivity, better jobs, greater performance of the national economy. This is all about backing those who will rattle the tin when it comes to the election—as you have done, time and again.Senator Murray, before you jump to any rash conclusions, you ought to go back and have a look at the act. You will see that it certainly is an offence to sack someone simply because they are a trade union member—Senator Jacinta Collins interjecting—10000PRESIDENTThe PRESIDENT—Senator Collins, stop interjecting.LD4Senator ALSTON—I have no reason to think that Patricks have done anything of the sort in severing the arrangements with the labour hire firm. I imagine that what Patricks have in mind is that they have actually reached the end of their tether, because they have found that they simply cannot get anyone to do a decent day's work. All they have found is politically motivated strike action—in other words, almost everything but a decent day's work—and they have taken the view they could do better elsewhere.Opposition senators interjecting—2350Murray, Sen AndrewSenator MURRAY3M6WAAD00—Madam President, I ask a supplementary question.LI4PATTERSONSenator Patterson—Point of order, Madam President. You have warned Senator Conroy and Senator Carr and during that answer they continued to shout and scream across the chamber. They are doing it now. It is totally inappropriate behaviour. I do not think that I have ever seen an opposition behave like this—or any side—since I have been here. It is totally out of order and totally unacceptable. I ask you to call them to order.5K4FAULKNER Senator Faulkner—Madam President, on that unctuous and sanctimonious point of order from Senator Patterson, who makes the point that you have drawn senators on both sides of the chamber to order in question time today—which is true. She named, selectively, two opposition senators who have been drawn to order by you in question time today. But I make the point to you, Madam President, that you called a senator to ask a supplementary question. Surely it is your job, if you feel aggrieved, to call a senator to order and we don't really need the sanctimonious and unctuous advice of Senator Patterson.LD4ALSTONSenator Alston—Point of order, Madam President. It is quite out of order to describe a question as unctuous and sanctimonious—that is a personal reflection—Opposition senators interjecting—LD4ALSTONSenator Alston—That is a personal reflection on the speaker. But, much more importantly, Madam President, to say to your face that you have selectively chosen two members of the opposition is effectively defying your authority. That is a reflection on the chair and Senator Faulkner ought to be required to withdraw.5K4FAULKNER Senator Faulkner—On the same point of order, Madam President, obviously Senator Alston is asleep. He apparently got here on time for once, but I was referring to Senator Patterson's point of order, not to your ruling, Madam President.LD4ALSTONSenator Alston—Why didn't you say so?5K4FAULKNER Senator Faulkner—Because you are just a dope. You just don't understand what is going on.10000PRESIDENTThe PRESIDENT—Order! I need no further help on this. There have been breaches of the standing orders all around the chamber and, particularly, there has been noise on my left. I want to hear Senator Murray's supplementary question.3M6Senator MURRAY—Minister, you are aware that the Democrats have always supported reform of the waterfront, that we voted for the Workplace Relations Act, and that we want to see that law implemented in an even-handed way. Is it not true, Minister, that the secondary boycott provisions in the Trade Practices Act adequately protect Australia from any unlawful action by waterfront workers? And is it not true that if Patricks defaults on the proposed loan, the liability of $250 million will be the taxpayers?2350Alston, Sen RichardSenator ALSTONLD4VICLPCommunications, the Information Economy and the Arts10—I am delighted to have the acknowledgment from Senator Murray that the changes that we jointly implemented to this act were designed to achieve reform on the waterfront, and they are doing just that. It is a great shame that former Senator Kernot has not come out and acknowledged that in recent times. I have not seen a press release from her today, but presumably it is being drafted at the moment.Senator Murray talked about secondary boycotts. I think those provisions are being effective. This mob would have ripped them out, of course, but the fact that they are there has had a very salutary effect on a number of people who might otherwise have been inclined—like Senator Forshaw's former union—to get out there, rip the place apart, cause the waterfront to come to a stop or, indeed, other industries to come to a stop. There is still talk about it happening with Caltex, but I trust it will not happen. The more important point is that the act is designed to ensure that the waterfront does operate effectively, and I am sure it will do just that.(Time expired)23512351Cook, Sen PeterSenator COOKRF4WAALP00—My question is directed to the Assistant Treasurer. Minister, do you agree with Mr Walmsley from the Australian Taxation Office when he said last Friday, in regard to dividend streaming—and I quote:Trusts, in particular, are employed because there were existing anti-dividend streaming provisions in the law, and trusts provided a fairly simple means of circumventing them.Minister, will trusts continue to be a fairly simple means of circumventing your new provisions regarding dividend streaming or will high-wealth individuals still be able to make use of trusts in order to stream fully franked dividends?2351Kemp, Sen RodSenator KEMPWW4VICLPAssistant Treasurer10—We have had a number of these questions from Senator Cook. What inevitably happens, of course, after the substantive question, is that they get back into the sleaze as quickly as they can. We will wait with interest for the supplementary question to see whether Senator Cook has adopted the practice of himself and his colleagues of recent date and attempt, through some tenuous connection with the first part of the question, to defame and demean a senator on this side.We have brought in, as you are aware, Senator Cook, some measures in relation to trusts which I think have been widely welcomed in the community because they deal with a massive problem with which the Labor Party left the tax system, so this government has taken action in this area. In relation to franking streaming, Senator Cook, you will be aware that we have made a number of announcements to deal with the massive problem of franking streaming.GB6COLLINSSenator Jacinta Collins—Will they work?WW4Senator KEMP—We believe our legislation will work, yes. Thank you, Jacinta Collins, for that interjection. We believe the legislation that we have brought in will work and will deal with the problem of franking streaming which was apparent in relation to the current system. So now I will wait, Senator Cook, for the supplementary question to see whether you are as grubby as usual.2351Cook, Sen PeterSenator COOKRF4WAALP00—I am surprised that you think they will work. I refer you to the evidence of the tax officer to the Senate inquiry. His evidence did not suggest that they would work perfectly. Minister, will it still be possible for the $2 million minister for coal and his wealthy mates to continue to stream fully franked dividends through the AQRM trust which owns one H class share in QCMM Pty Ltd? Why is it fair for a millionaire minister for resources, whose portfolio includes coal, to avoid paying tax through such tax minimisation schemes when your government wants to impose on struggling Australian families a GST which they will not be able to avoid paying? Why is that fair?2351Kemp, Sen RodSenator KEMPWW4VICLPAssistant Treasurer10—And wasn't I absolutely right? This is one of the king grubs of the front bench of the Labor Party. And there are four of them: Senator Ray, Senator Cook, Senator Faulkner and Senator Conroy.10000PRESIDENTThe PRESIDENT—Senator Kemp, that is not an appropriate way to refer to senators.WW4Senator KEMP—Wasn't I absolutely correct in saying that the supplementary question would lead to a grubby attempt to defame a member of the front bench of this party? We remember your form, Senator Cook. You have set a dreadfully low standard. You have not made one substantive contribution.RF4COOKSenator Cook—Madam President, I raise a point of order. My point of order does not relate to defending myself, because while Senator Kemp is attacking me he is leaving someone else alone. My point of order relates to relevance. Why won't Senator Kemp answer the question on fairness that has been put to him: why is it fair to allow tax avoid ance by the wealthy while seeking to impose a GST on all other Australians?10000PRESIDENTThe PRESIDENT—There is no point of order.WW4Senator KEMP—What I was saying was absolutely relevant. He stood up as I predicted and attempted to defame a member of the front bench of this party. What I said to Senator Cook was absolutely relevant. I add that it is relevant to point out that for Senator Cook of all people to stand up and talk about fairness in the tax system when he is well known as the senator who supported R&D syndicates—(Time expired)RF4COOKSenator Cook—That's a lie!10000PRESIDENTThe PRESIDENT—Senator Cook, withdraw that.RF4COOKSenator Cook—Madam President, I withdraw the word but I ask you: when someone does not tell the truth, and repeatedly does not tell the truth, why am I prevented from using the only word Australians understand as to what they have meant?10000PRESIDENTThe PRESIDENT—Senator Cook, there is an appropriate time to debate answers and it is after question time.23522352Colston, Sen MalcolmSenator COLSTONPF4QLDIND00—My question is directed to Senator Herron in his capacity as Minister representing the Minister for Family Services. Has the minister read a report in today's print media that many working mothers clear only $2 an hour due to high child-care costs? Is it a fact, as outlined in the report, that long day care costs have risen faster than the rate of inflation? Did the report also show that a Brisbane couple earned just a clear $2 a fortnight more when the woman worked 40 hours a fortnight? Does the minister regard this situation as satisfactory?2352Herron, Sen JohnSenator HERRONVW4QLDLPAboriginal and Torres Strait Islander Affairs10—I thank Senator Colston for the question. Yes, I did see that report. As I have said previously in relation to this matter, there are outliers in every community affected by the child-care changes.GB6COLLINSSenator Jacinta Collins—What's an outlier?VW4Senator HERRON—I have been asked what an outlier is. In any consideration there are people at both ends of the spectrum who are affected unduly by any measure that is introduced. The fact of the matter is, Senator Colston, that there has been no change in the work force participation rate of mothers.ZF4CROWLEYSenator Crowley—Rubbish—200,000 women have left!VW4Senator HERRON—Those in the Labor Party keep saying `rubbish' but they never consider the facts. The fact is that there has been no change in work force participation by mothers due to child care. I am happy to give those figures.The other side of the coin is that under Labor child-care centres were established not where they were needed. People responded to the incentives given by the Labor Party for the establishment of child-care centres. When we came into government we not only inherited a $10½ billion deficit that we had to attack but also inherited problems in the child-care system. There were many child-care centres established where there was no need. Of course, some were unduly affected.Senator Colston, all of us regret that people on low incomes are unduly affected by changes that are brought in. There are certainly people who have been affected in that regard. But overall it has no effect on the number of people who are putting children into child care. The total labour force participation rate of females with dependent children has remained relatively stable at around 59 per cent since January 1996. There has been no change. The Labor Party does not accept that even though we have presented them with the facts all along.The government is committed to provide fair and reasonable access to quality child care. Reforms to be introduced on 27 April will improve assistance for around 70,000 families using outside school hours care, ensure that children using child care are appropriately immunised, allow 20 hours a week for families wishing to use child care for non-work related purposes and ensure that new centres are located in areas of high need. We are attacking that problem.Significant subsidies are available for families using child care. For low income families the government provides around $5,600 a year where there is one child in full-time care and over $12,000 if there are two children in full-time care. That is available to those people who have been mentioned. As I said, those changes will be introduced on 27 April. It is because of that that we see that report today.The government has also increased assistance for families through the introduction of the family tax initiative which provides up to $900 per annum for a single income family with two children and $400 per annum for a two-income family. The answer to your question, Senator Colston, is that there is a temporary hiatus which will be fixed on 27 April and those people will be covered by that.23532353Faulkner, Sen JohnSenator FAULKNER5K4NSWALP00—My question is directed to the Assistant Treasurer. Minister, is the Prime Minister not correct in complaining, as he has in his foreword to Mr Costello's little red book:Many people are not paying their fair share of tax. Until we improve our system, they will continue to find ways of not paying tax which means that someone else ends up paying their share for them. It is just not fair.Minister, can you confirm that billions of dollars is lost to revenue through tax avoidance by high wealth individuals, in particular through the abuse of trusts. Is it not true that if the artful dodgers paid their fair share of tax your government would not be pursuing policies like the elderly having to sell their homes to get into nursing homes, pensioners having to resort to using superglue to fix their teeth and the states could get the money to run an effective public health system?2353Kemp, Sen RodSenator KEMPWW4VICLPAssistant Treasurer10—I rather hoped when Senator Faulkner got to his feet that we were at last going to hear an apology to the Baillieu family for the disgusting slur that he made and which everybody recognises is wrong. What a joke it is to have Senator Faulkner getting up and talking about problems of high wealth individuals when sitting right behind him is Senator Cook, who, as I said, was a great defender of one of the great rorts in the tax system—R&D syndicates. What a joke it is for him to get up and talk about it when he and his colleagues, led by Senator Sherry, decided that they would attempt to defeat the superannuation surcharge for high wealth individuals.RF4COOKSenator Cook—That's a lie! Why don't you tell the truth for once in your life?10000PRESIDENTThe PRESIDENT—Order! There is too much noise in chamber.WW4Senator KEMP—As I was saying, when we brought in the measure—UW4CRANESenator Crane—Madam President, I raise a point of order. Can I drew your attention to the fact that Senator Cook once again used the word `lie'. I ask that it be withdrawn. Can I also ask how many times he has to repeat that in the same question time without being thrown out?10000PRESIDENTThe PRESIDENT—Senator Cook, if you used that word I ask you to withdraw.RF4COOKSenator Cook—I used that word and I withdraw. Madam President, I raise a point of order. Senator Kemp has continued to make that charge which he knows to be wrong and which has been proven to be wrong.10000PRESIDENTThe PRESIDENT—That is a debating point for you to take up in the debate to take note of answers. It is not appropriate to debate it during question time.RF4COOKSenator Cook—Madam President, I accept what you say. It has been pointed out to Senator Kemp that this is wrong. He continues to do so.10000PRESIDENTThe PRESIDENT—Senator Cook, you are continuing to debate the issue.WW4Senator KEMP—Senator Cook, as usual, is a bit slow off the mark because I had moved on to another issue of tax equity and referred to the superannuation surcharge.UNKNOWNGovernment senatorsGovernment senators—Tax!WW4Senator KEMP—Wow! Aren't they clever? They are a clever lot. I don't care what anybody says: they are a clever lot. Their leader gets up and talks about the problems of high wealth individuals. When this government brought in the superannuation surcharge, who voted against it? The Labor Party voted against it.Let me now turn to the specific issue of high wealth individuals. Let us recall that Labor were in office for 13 years. During the election campaign, the caretaker period after their 13 years in office, what did Mr Keating and the Treasurer announce? That there were problems, they perceived, with high wealth people avoiding tax. After 13 years the Labor Party discovered a problem in this area. You people are an absolute pathetic joke.We announced when we came into government that this government was committed to ensuring a fair and equitable tax system. That is one of the driving forces behind the tax reform program that this government has proposed which is, because it is about fairness and because it is about equity, opposed by the Labor Party.Let me assure the Senate that the government is committed to addressing tax minimisation practices used by some high wealth people. There is no doubt about that. The government has provided the Australian Taxation Office with additional funding, some $19 million over two years. You provided nothing, Senator Faulkner. We have provided $19 million over two years to deal with this problem to enable the establishment of a special task force.Investigations to date have revealed that some high wealth individuals use trusts to minimise tax. The evidence has been taken into account in the review of trusts. Improvements, I can assure Senator Faulkner, in compliance are expected to generate revenue in the order of $100 million in 1997-98.I thank Senator Faulkner for the question. It allowed me to remind the Senate of the pathetic effort of the Labor Party in this area and provided me with the opportunity to show that this government is taking action. So, Lurch, thanks for the question.10000PRESIDENTThe PRESIDENT—Senator Kemp, would you withdraw that?5K4FAULKNER Senator Faulkner—Oh, who cares, Madam President?10000PRESIDENTThe PRESIDENT—It is not an appropriate way to address a senator.5K4FAULKNER Senator Faulkner—Oh, I don't mind. Who cares? 2354Faulkner, Sen JohnSenator FAULKNER5K4NSWALP00—I thank Senator Kemp for the question because it does give me an opportunity to ask this supplementary question to him. It relates to the Prime Minister's comments.WW4KEMPSenator Kemp—Look more casual, John.5K4Senator FAULKNER—Yeah, I will. Don't you think, Senator Kemp, that the Prime Minister has a real nerve crying crocodile tears over those who are forced to pick up the tab for tax avoiders when he has a row of them on his front bench, including the most artful tax dodger of them all, Senator Parer?BH4HILLSenator Hill—On a point of order: you cannot reflect on a senator in that way. He should withdraw.10000PRESIDENTThe PRESIDENT—I did not hear the remarks. If unparliamentary remarks were made, he should withdraw.5K4FAULKNER Senator Faulkner—Let me repeat them so you can make a ruling, because I believe it is in order. I described Senator Parer as the most artful tax dodger of them all. That is what he is.10000PRESIDENTThe PRESIDENT—I ask you to withdraw that. It is clearly in breach of the standing orders.5K4FAULKNER Senator Faulkner—I withdraw it if it is out of order.10000PRESIDENTThe PRESIDENT—It is. It is in breach of the standing orders.5K4FAULKNER Senator Faulkner—But it has been in order before. You know what you are! Resign!10000PRESIDENTThe PRESIDENT—Senator Faulkner! Order! I remind senators again—Honourable senators interjecting—10000PRESIDENTThe PRESIDENT—I have had a second message from the ABC to advise that there has never been a reaction to question time like there has been today in terms of the number of calls protesting about the behaviour of senators and the noise in the chamber, calls from all over Australia to the ABC at Parliament House and at ABC offices. My own office has had calls constantly throughout question time. I think it is a matter that senators ought to reflect upon.LD4ALSTONSenator Alston—Madam President, on a point of order: is it out of order when you are telling the Senate about the reaction from the public and particularly in relation to the ABC for Senator Faulkner to say, `Big deal'?10000PRESIDENTThe PRESIDENT—I did not hear that.LD4ALSTONSenator Alston—I certainly did.10000PRESIDENTThe PRESIDENT—There have been so many breaches of the standing orders today all around.5K4FAULKNER Senator Faulkner—You are a low life.LD4ALSTONSenator Alston—He is not denying it.10000PRESIDENTThe PRESIDENT—Senator Faulkner! Senator Kemp, did you wish to respond to the supplementary question?2355Kemp, Sen RodSenator KEMPWW4VICLPAssistant Treasurer10—Frankly, I will see what I can do. I do not think there was a supplementary question there; there was a disgraceful, unpleasant attack on a member of the front bench.10000PRESIDENTThe PRESIDENT—Thank you.WW4Senator KEMP—I have not finished, Madam President. If I may continue—10000PRESIDENTThe PRESIDENT—If there was no question, Senator—WW4Senator KEMP—If Senator Faulkner feels so strongly about these matters, it is open for him to go outside the chamber and show a bit of courage for a change.10000PRESIDENTThe PRESIDENT—Senator Kemp, resume your seat please!RF4COOKSenator Cook—Madam President, on a point of order: I just thought that you were calling Senator Kemp to order and he was ignoring your order.10000PRESIDENTThe PRESIDENT—Thank you. I call Senator Stott Despoja.LD4ALSTONSenator Alston—Oh, the celebrity senator.23552355Stott Despoja, Sen NatashaSenator STOTT DESPOJA3I6SAAD00—You wish, Senator Alston. My question is addressed to the Minister representing the Minister for Employment, Education, Training and Youth Affairs. Minister, in the recent tendering out of employment services, why was it a precondition of attending a debrief that unsuccessful organisations agreed to be audio taped? Why were these organisations not informed of the purposes of this audio taping? Can you inform us now as to these purposes? Minister, perhaps you could outline why some of the organisations were unsuccessful—that is, some of the reasons that these unsuccessful tenderers were given at that particular briefing session?2355Ellison, Sen ChrisSenator ELLISON9X5WALPSchools, Vocational Education and Training10—All tenderers, and there were a 1,000-odd tenderers, were approached by the department with an opportunity for a debriefing session. Some 670 of those, I understand, requested such a debriefing session and 400 of those have been conducted. At those debriefing sessions, there was present a representative from the department and a solicitor, I understand, from Blake Dawson Waldron, which was the firm of lawyers that was advising the department during the course of the tender process. The unsuccessful—or successful—tenderers were free to ask questions as to why they were or were not successful. As to the recording, I understand there was a record made of those meetings, but as to whether or not they were told, I was of the impression that they had been told, Senator Stott Despoja. Perhaps you could enlighten me.2355Stott Despoja, Sen NatashaSenator STOTT DESPOJA3I6SAAD00—Madam President, I ask a supplementary question. My question to the minister—and perhaps he can take it on notice—is: why was it a precondition? Not only were these groups not informed in advance; it was made a condition that, if they wanted to hear the reasons why they were unsuccessful in their bids, they had to agree to be audio taped. If they were informed—contrary to what I have heard—perhaps you can tell us why they were not informed as to why they were being taped and for what purposes the tapes would be used.2355Ellison, Sen ChrisSenator ELLISON9X5WALPSchools, Vocational Education and Training10—There are two aspects to this: the question of whether they were informed, and the question as to why the recording was taking place. I will take the latter first. The latter relates to legal advice, and that relates to people who were unsuccessful who might want to take legal action against the Commonwealth. The Commonwealth would have to be very careful in the advice it gave those unsuccessful tenderers, because after a meeting some people would go away with a misunderstanding as to what actually transpired during the course of that conversation. So, to that extent, it was a prudent course of action. As to the advice given to the participants, my understanding was that they were told that there was a recording made, but as to the reason for it, I will take that on notice.BH4HILLSenator Hill—Madam President, I ask that further questions be placed on the Notice Paper .Miscellaneous2356235615:09:002356Kemp, Sen RodSenator KEMPWW4VICLPAssistant Treasurer10—On Monday, 6 April, Senator Conroy asked me a question. I seek leave to incorporate the answer in Hansard .Leave granted.The answer read as follows—On Monday 6 April 1998, Senator Conroy asked me the following question (Senate Proof Hansard 6 April 1998, page 1498):Can you confirm that your new anti-dividend streaming provisions [in Taxation Laws Amendment Bill (No. 7) 1997] will not apply to differential dividend amounts paid to different classes of shareholders providing they all receive franked dividends. If so, will it still be possible for a trust holding one class of shares to receive a disproportionate amount of dividends relative to other classes of shareholders providing both classes of shareholders receive franked dividends?If all shareholders in a company are equally capable of using franking benefits the proposed dividend streaming provisions will not apply. If some shareholders are more able to use franking benefit than other shareholders, the streaming provisions may apply, depending on the particular facts, notwithstanding that all shareholders are paid franked dividends. For example, if one shareholder more able to use franking credits receives a large franked dividend, and another, less able to use franking credit, receives a small franked dividend and, to compensate, other benefits, the proposed dividend streaming rule could apply.If the franked dividend is paid under a scheme for the disposition of shares for a purpose of conferring a tax advantage in relation to franking, the proposed general anti-avoidance rule in the bill could also apply. 235615:10:002356Kemp, Sen RodSenator KEMPWW4VICLPAssistant Treasurer10—On Tuesday, 7 April, Senator Conroy asked me a question. I seek leave to incorporate that answer in Hansard .Leave granted.The answer read as follows—On Tuesday 7 April Senator Conroy asked me the following question (Senate Proof Hansard 7 April 1998 page 1509):Can the Minister 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?This is very similar to a question that Senator Cook asked of ATO officials on Friday, 3 April 1998, during the Senate Economics Legislation Committee Inquiry into Taxation Laws Amendment Bill (No.7) 1997.It is not possible to provide a considered response without knowing the precise details of the transaction being referred to.Miscellaneous23562356Herron, Sen JohnSenator HERRONVW4QLDLPAboriginal and Torres Strait Islander Affairs10—by leave—Madam President, we are in the third week of sitting and you mentioned the behaviour of senators on both sides of the chamber. I think this is a reflection of the late hours of sitting which has been brought up on previous occasions. I would like you to take note that we have had many late hours. I have spoken about this on previous occasions, and I think we should take note that that behaviour reflects the hours of sitting.Miscellaneous2356235615:11:002356Faulkner, Sen JohnSenator FAULKNER5K4NSWALP00—I move:That the Senate take note of the answers given by the Minister for the Environment (Senator Hill), to questions without notice asked by Senators O'Brien and MacGibbon today, relating to an industrial dispute on the waterfront. Madam President, you reported that you had received a significant number of calls, and there had been a number of calls to Parliament House about question time. I have no doubt that that is because of the outrage felt in the Australian community because of what this government has orchestrated in relation to the waterfront. What happened was that at midnight last night, this country was treated to the sight of Australian workers being peremptorily sacked by their employer, Patrick Stevedores, on the spurious ground—and only ground—that they were members of the Maritime Union of Australia. That is why they were sacked.These workers have been locked out of their workplaces by security guards who were accompanied by dogs on leashes. That is what industrial relations, Howard and Reith style, is in Australia in 1998. These sackings have been incited by the Howard government; they have been encouraged by the Howard government; and they have been financially supported by the Howard government. The blackest irony is that these actions by the employer are illegal under the government's own Workplace Relations Act. Workers cannot be sacked on the basis of their membership of a union.Government senators interjecting—5K4Faulkner, Sen JohnSenator FAULKNER—If you don't believe that, go and take a very close look at section 170 of your own government's act.The government has actively agitated now for industrial disputation on the waterfront. It has funded private consultants with taxpayers' money to develop the strategy we see in place. The government has been very closely involved at every stage—at Cairns, Dubai, the Webb Dock and now nationwide. The government has consistently refused to constructively work for proper reform on the waterfront, whereas we say the Maritime Union has proven its reform bona fides with the recent agreement on shipping. The government has made secret agreements with the employer to use taxpayers' money for redundancy payouts which, as we pointed out in question time today, they refused to do for Cobar and Woodlawn miners.The Minister for Workplace Relations and Small Business, Mr Reith, has been consistently on the job trying to stiffen the spine of Patricks. This is a grubby little plan hatched by Mr Reith, the same Mr Reith who sought and received a substantial discount on his luxury apartment in the Domain building, courtesy of Hudson Conway; the same Mr Reith who not only did that, but boasted about it. What would Penthouse Pete know about real Australian workers and real Australian workers' families?We say that this is a cowardly and hypocritical strategy that has been pursued by the Howard government in the full knowledge that the real losers here will be all Australians, in the full knowledge that the Australian economy will suffer irreparable damage as a result of the government's policies.Senator Ferguson interjecting—5K4Faulkner, Sen JohnSenator FAULKNER—I do not believe—and we have seen plenty of evidence of this today—that Australians will stand up and support a whole work force being sacked because they are a members of a legal union. I reckon you have misread this one, Senator Ferguson, and Australia will not stand for the economy being jeopardised for base political purposes. There is no doubt that today the gutter politics of this government are on display for all Australians to see. (Time expired)15:16:002357Ferris, Sen JeannieSenator FERRIS5L6SALP10—I also rise to take note of the answer given by Senator Hill. What a great week the MUA has had on the waterfront. Senator Faulkner describes these people as real Australian workers. Well, what a great job they have done for Australia this week. They have denied the free passage of shipping to P&C Stevedores, they have broken and bankrupted Patricks. Industrial warfare on the waterfront has cost Patricks $56 million. In doing so, these `real Australian workers' have sold out their families—their wives and their children. Thank goodness this government has put in a safety net loan provision to allow those families to continue, despite the disgraceful and irresponsible behaviour of those great Australian workers.The waterfront is locked in the 1950s, and the wharfies belong with them. Their industrial practices go with Morphy Richards toasters—remember the toasters that Paul Keating uses?—the FJ Holdens, the Malvern Star bicycles—N26ABETZSenator Abetz—And the Hills hoists.5L6Ferris, Sen JeannieSenator FERRIS—And the Hills hoists. A couple of weeks ago I met with a delegation of wharfies from Webb Dock in my office. They subsequently gave me a PR kit, which described their campaign for justice on the waterfront. Isn't it interesting that the cover of this PR kit shows half a ship, half a truck and a set of broken-down waterfront piles? What a joke.I suggest that those opposite consider for a moment the following comments that were made in relation to an industrial relations dispute when union officials compared farmers with the thugs and hooligans who supported Adolf Hitler and fascism in Germany. These were not the words from last night's press conference. They were the words used to describe the very first time the farmers decided that they were going to get their product out of this country as efficiently and effectively as the customers wanted. It was 20 years ago this week. It was the meatworkers, and the waterfront workers have learnt nothing from the experience, from the loss at that time. They subsequently lost live sheep, they lost Mudginberri and they will lose this dispute.We have heard a lot today and we heard a couple of days ago as well that Bob Hawke was going to be brought in to solve the problems on the waterfront.Senator O'Brien interjecting—5L6Ferris, Sen JeannieSenator FERRIS—Here is what Bob Hawke had to say when he talked about that last great dispute involving the Labor Party—the pilots dispute. I ask you, Senator O'Brien, to take note of this when you call this man in to help you on the waterfront. He said, `My message to them is that they will cop every instrument of punishing retribution and reaction that the operators bring against them. It's a different game this time, boys. It's war. They are exceptionally greedy.'But before you bring in the old Silver Bodgie to mediate, I draw to your attention that in the waterfront PR kit that was delivered to my office there was a list of names of people throughout the world and at home who care and who support `our stand against paramilitary personnel taking over Australian ports'. The first person is Archbishop Tutu. I am not quite sure how well briefed he was but when you are considering bringing in the old Silver Bodgie himself perhaps you should warn him that he will need to declare a conflict of interest, because, on the list of people throughout the world who care about this dispute and `support our stand against paramilitary personnel taking over the waterfront ports, are two names that might be of interest to him. The first is Hazel Hawke and the second is Blanche D'Alpuget, surely a very unfortunate conflict of interest for that great mediator, the former Prime Minister himself. There is absolutely no doubt that this waterfront dispute has gone on too long. It has broken the Patrick company and, if allowed to continue, it would break Australia. Thank goodness Cheryl Kernot and the Democrats saw the light. They understood that the waterfront has to work and they delivered. (Time expired)15:21:002358Cook, Sen PeterSenator COOKRF4WAALP00—Last night just before midnight Patrick Stevedores sacked 1,400 dock workers in 17 docks around Australia. They did so with armed guards and with dogs on leashes and at a time which denied these workers access to their Easter leave entitlements. They did so expressly because the workers are union members and therefore the action was in breach of the act that this government put through this parliament. They did so during an industrial dispute and therefore directly in breach of this act. And they did so at a time which infringed the ILO articles of freedom of association. In other words, Patricks have acted illegally. Not only have they acted craftily, stealthily and sneakily; they have also acted illegally. That needs to be clear and on the record. I believe that when this matter goes to court that will be found. The trouble is that this government is hand in glove with them: it was at Cairns last year when it tried to interfere with waterfront reform, it was when it sponsored the training in Dubai of commandos to replace waterside workers and it was at Webb dock. It was hand in glove with them at every step of the way. This government is equally as culpable as Patricks and ought equally be held up before the courts because of its breach of its own laws, and the minister should be dealt with accordingly. They are the certain facts in this matter.Opposition senators interjecting—RF4Cook, Sen PeterSenator COOK—Someone has interjected `conspiracy'. That is an appropriate description of what has happened. Let me say a couple of things about this dispute. The first thing is that overnight and instantly, after it heard of this dismissal just before midnight, the government decided that it would get up a bill which is now introduced into the House of Representatives—the fastest piece of legislation ever to be framed in the history of the Commonwealth of Australia. It is a bill which imposes a tax of $6 per car that is moved across the waterfront and $12 per container—just what we need for Australia's export industries. At a time in which the Asian economic crisis is hurting our export market, we are going to impose a new tax on the export industry. Why are we going to impose it? This government is going to try to impose it in order to cover its duplicity in this event, to pay out those waterside workers, if they will accept it, and to rescue Patricks. This is an unwarranted use of taxpayers' money for the government to employ in the event of an industrial dispute in order to buy their way through this dispute.In the case of waterfront reform, there are two great lies that are propounded by the government. The first great lie goes to what is the extent of the issues on the Australian waterfront front. Of all the cargoes moved—N26ABETZSenator Abetz—On a point of order, Madam Deputy President: this senator was requested, during question time, to withdraw I think on four separate occasions, on three of those occasions for using the words `liar' or `lies'. When he suggests that the government lies, he makes that imputation against every single government member of the House of Representatives and of the Senate. He should withdraw that. I suggest: five times and you're out.10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Senator Cook, if you make it clear that you are not imputing that word to an individual member of parliament, then it is not unparliamentary, but if you are imputing it to a member of parliament—RF4Cook, Sen PeterSenator COOK—Madam Deputy President, I said that this government propounds two great lies; that is, the government as a collective. If the senator wants to take it personally, that is his lookout. I am in order, I submit.N26ABETZSenator Abetz—On a point of order, Madam Deputy President: there have been previous rulings in this place that you cannot hide behind saying, `You mob over there are liars.' That is just as much an affront as saying, `A particular senator over there is a liar.' They have been the rulings in this place for some time and I would ask you to abide by those rulings.10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—That ruling is correct. If Senator Cook wishes to continue to use the word, he has to make it very clear that he is not referring in any way to—5L6FERRISSenator Ferris—Withdraw!10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Senator Ferris, I am in the middle of giving a ruling. I would appreciate silence. Senator Cook has to make it clear that he is not imputing any reflection upon any member in either house.RF4Cook, Sen PeterSenator COOK—Thank you, Madam Deputy President. There are two great lies in this event. One lie is about waterfront reform.EP5FERGUSONSenator Ferguson—The other lie is you.RF4Cook, Sen PeterSenator COOK—I beg your pardon?EP5FERGUSONSenator Ferguson—You heard.10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Senator Ferguson, please withdraw that.EP5FERGUSONSenator Ferguson—Madam Deputy President, I understood, as Senator Cook was using the word, that it has become commonplace use in the chamber.10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Senator Ferguson, withdraw unconditionally and without additional comment. You were referring directly to an individual.EP5FERGUSONSenator Ferguson—Madam Deputy President, I was just attempting to withdraw unreservedly and you would not let me. I was just saying that the word seems to be freely used.10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Thank you. That is all you need to withdraw.RF4Cook, Sen PeterSenator COOK—Thank you. Ninety per cent of goods that cross Australian wharves are bulk commodities and are shifted in the bulk trade. In the bulk trade, Australia is at world's best practice. That is not my view; that is the view of the Bureau of Industry Economics which did a study on this matter in 1995—world's best practice for 90 per cent of the goods across the waterfront. The other 10 per cent of the goods across the waterfront are in containers. At that level we have 20, or thereabouts, container movements per hour. That is not world's best practice, but it is damn close to it if you compare like with like. You cannot compare Australian ports with Rotterdam or Singapore, which are the world's best practice, because of the bulk movement of containers in those ports.Let us get these facts right. The waterfront in Australia, 90 per cent of the time, is world's best practice efficient and for the other 10 per cent it is in the appropriate order where our ports sit if you compare apples with apples.YW4MACDONALDSenator Ian Macdonald—Keep it honest.10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Order on my right.RF4Cook, Sen PeterSenator COOK—That is the honest truth. To refer you to the Bureau of Industry Economics, it is not a fact that you want to refer to in this dispute because it does not suit your convenience. I conclude on this. The way you get waterfront reform—and waterfront reform and efficiency, so that the exporters get paid better, is necessary in this country—is not by confrontation with the waterfront; it is by cooperation and working with people on constructive ways of reform. You want to bring industrial muscle, fines and commandos to use against waterside workers, but that won't work. (Time expired)15:29:002360Chapman, Sen GrantSenator CHAPMANFF4SALP10—Nothing demonstrates more than what we have just heard from Senator Cook the sort of problem that we have in reforming the Australian waterfront because the opposition simply refuses to acknowledge the problem. Unlike the opposition, the Australian community are all too well aware of the problem on the Australian waterfront and they are absolutely fed up with the hooliganism of the MUA. That is why they are supporting the reform process that this government has put in place. Senator Cook said, `You must cooperate with the union.' He is walking out now, he does not want to hear the truth. Sit down and listen.RF4COOKSenator Cook—Could I take a point of order, Madam Deputy President? I have just been accused of not wanting to hear the truth. I have just made some remarks which I referenced to an independent source. That is the truth, and the sort of thing that we are hearing now is not the truth. I am quite happy to walk out on that.10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—There is no point of order.FF4Chapman, Sen GrantSenator CHAPMAN—Senator Cook, as I was saying, encourages cooperation with the unions as the means to solve the problem and avoids a confrontation. But, Senator Cook, as you walk out, who is responsible for the confrontation? None other than John Coombs and the MUA. It is they who confronted the waterfront companies, the stevedoring companies, which are seeking relevant and appropriate reform. They were seeking to break Patricks because Patricks dared to challenge the inefficiencies as a result of the cosy monopoly that was previously enjoyed by the wharfies.They were singled out by the Maritime Union and subjected to punitive strike action. That cost that company $56 million. So it is no wonder they had to make their employees redundant when they suffered that massive cost. And of course the MUA made it very clear that any attempt to reform the waterfront would `involve massive industry disputation'—a test of wills. Well, there has been a test of wills, and the MUA lost the test of wills. They lost the test of wills because, as I said, the Australian community generally recognise and support the need for improved efficiency on the Australian waterfront. Australia, as an island nation, an island continent, is absolutely dependent on our waterfront and our sea transport for the export of our wealth earning goods. We cannot survive without it.On a value for money basis, in a recent survey it was found that Australia's wharfies ensured that Australia's ports were ranked at the bottom of the list. Sadly, as a South Australian senator, I have to say that Adelaide was the worst of all in terms of value for money. Adelaide rates 18 out of the 18 ports surveyed around the world. Our crane rates are below international standards at 18.3 lifts per hour. A number of ports around the world achieve lifts of 30 per hour. What the government is seeking as a benchmark is 25 lifts per hour, a quite modest goal in relation to international standards. It is a modest benchmark to establish, yet the unions are objecting to lifting the rate from the current 18.3.Other problems with efficiency on the waterfront include the temporary or permanent disability of about 10 per cent of the work force—much higher than in any other industry. Of course, when it comes to working days lost because of industrial action, in 1996, 1,130 working days were lost per 1,000 employees—well above that of any other industry.The reason for that is because of all the rorts that are continuing on the waterfront. We heard about the stripper rort where the rate of 10.4 containers an hour on the first shift suddenly lifted to 29.7 containers an hour when they were told they could knock off after they finished to go to the stripper show down at the local pub. We know about the airconditioning rort where, even though the cabs of the equipment have airconditioning, the wharfies will not work if the outside temperature is more than 39 degrees. There is the safety card rort. There is the car loading rort where five wharfies are required to load a car. And so the rorts go on.And the Labor Party has the gall to come in here and criticise the employers. They do that because of their own failed WIRA pro cess when they were in office. When it came to waterfront reform, the Labor Party were on one long smoko when they were in government. They spent some $430 million of taxpayers' money—N26ABETZSenator Abetz—How much?FF4Chapman, Sen GrantSenator CHAPMAN—Some $430 million of taxpayers' money, Senator Abetz, and achieved nothing in terms of reform. There was some temporary improvement but, as soon as the government removed the pressure, the reform process finished and we slipped back to the bad old ways, the rorts and the over-manning.The Interstate Commission said exactly that at the outset of that reform process. It said, `There is a tendency for matters to improve considerably while they are under investigation, but to lapse once the pressure is removed.' Labor removed the pressure; we are keeping the pressure on. (Time expired)15:35:002361Campbell, Sen GeorgeSenator GEORGE CAMPBELLNB5NSWALP00—What a spectacle we were treated to this morning. We were awakened to the news on all of the media that Reith's raiders had reclaimed the waterfront. Reith's white shirts had moved in in the dead of night with vicious dogs, taken over the waterfront and secured Patricks from those terrible wharfies. There was a real threat to our whole community.Government senators interjecting—9L6MACKAYSenator Mackay—It is not funny.NB5Campbell, Sen GeorgeSenator GEORGE CAMPBELL—It is not funny; it is deadly serious. There are 1,400 families around this country that have been made Howard's Easter bunnies by your actions. You do not give a damn about the workers of this country, and you never have. You are only concerned with your mates at the big end of town.Government senators interjecting—10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Order! Senator Campbell, would you please address the chair, and would those interjecting on my right please cease.NB5Campbell, Sen GeorgeSenator GEORGE CAMPBELL—The reality, Madam Deputy President, is that what occurred this morning has been the culmina tion of what has been in planning for the past 18 months. And it has nothing to do with efficiency on the waterfront; it has nothing to do with improving productivity on the waterfront.This mob came to power in March 1996 with this hidden agenda of crushing the Waterside Workers Federation, or the Maritime Union of Australia as it is now known. That was the secret agenda developed by ACIL through the secret consultancy reports that they have refused to make public. That is what the Cairns waterfront dispute was all about. That was the first trial run, and it was a dismal failure. That is what Dubai was all about. It was about trying to set up the scabs who were going to move in on the maritime workers. That is what Webb Dock was all about.Anybody here who seriously believes that the PCS and the National Farmers Federation were serious about moving one container across the waterfront at Webb Dock has rocks in their head. They believe in fairies at the bottom of the garden. It was a deliberate set-up to position the union, to put them into court and to try and break them financially. That is what the agenda at Webb Dock was all about. That is what they were on about. They were trying to put them in a position where they breached the laws of this country so that they would be penalised severely for it.But what do we have now? The laws of the country are being broken by an employer with the complicity of the government. It is not only that the laws of the country are being broken with the complicity of the government; the government is providing financial support, taxpayers' money, in order to back up the actions that have occurred on the waterfront.N26ABETZSenator Abetz—He believes it—that's the trouble.NB5Campbell, Sen GeorgeSenator GEORGE CAMPBELL—Let me tell you something, Senator Abetz, do not put your cue in the rack yet. Do not think that this dispute is over. Do not think that just because the white shirts of Peter Reith are on the waterfront today that they will stay there. Don't you think for one minute this dispute will be over in five minutes, because I can assure you, through long experience, that it will not. I actually worked on the waterfront—I worked on the Sydney waterfront and I worked on the Melbourne waterfront—and I know a little bit about its history.One thing the people on that side of the chamber cannot stomach and the reason they are so vicious in relation to that union is that the union nicknamed the founder of the Liberal Party `Pig Iron Bob'. They found him out, they found out what the game was, and the Liberal Party have never forgiven them for it. The Liberal Party have never forgiven the wharfies for nicknaming Menzies `Pig Iron Bob'.Look at the agenda of the Liberal Party since it has been in government. It has not changed—only the players have changed. When the Liberal Party came to power in 1975, what did Malcolm Fraser do? He did two things. Firstly, he put a provision in the act for conscientious objection and, secondly, the Liberal Party went out and stirred up people all around the country to stand up and to leave unions. They created disputes all over the place. Then the Liberal Party put in place an industrial relations bureau—Fraser's industrial relations police. What for? Not to make the rules of the industrial relations game equal but to skew them in favour of the employer. That is what their agenda was.What happened in 1996? Exactly the same. The government came in and introduced industrial relations laws. Peter Reith, the pretender Prime Minister in the other place, said, `We're introducing these laws because it should be up to the players in industrial relations to solve the problem. Let them get out there and do it themselves.' What happened? There is a blue on the waterfront, a dispute on the waterfront, and the first thing the government does is move in on the side of the employer. (Time expired)15:40:002362Macdonald, Sen IanSenator IAN MACDONALDYW4QLDLP10—Well, Senator George Campbell, spoken like a true union organiser. That is, of course, what you were, weren't you? Were you on the wharfies union? It was your revered former leader Mr Keating who accused you of having 100,000 dead men around your neck. Senator George Campbell is in the union. He is a union organiser and he cannot look after the real workers. The wharfies union is the group that puts the real workers out of work.I heard Senator George Campbell talk about scabs. We know what scabs are: scabs are those people who bring in the troops or bring in overseas workers to break a union strike. Who did that in recent history? The opposition well knows because it was their revered leader Bob Hawke who brought in the troops to break a strike. Before that, the last major Labor Prime Minister, Mr Chifley, also brought in the troops to break a union strike. Do not talk about us being scabs. In Australian history, only the Labor Party has ever brought in troops to break a union strike. What is more, they brought in foreign workers to put Australian workers out of a job. That is the record of the Australian Labor Party.There has been a lot of whingeing and carrying on from the other side about what they say is unfair industrial relations law. I just cannot work out why they say this because it was the star recruit of the Labor Party, Ms Cheryl Kernot, the Australian Labor Party candidate for Dickson, who ensured that this legislation was passed. Now they are complaining about it. If the opposition did not like the laws that Ms Kernot brought in, why did they endorse her as the Labor candidate for Dickson? You cannot have it both ways: either the legislation is right because a star Labor candidate ensured that we passed it or—FF4CHAPMANSenator Chapman—Fading star.YW4Macdonald, Sen IanSenator IAN MACDONALD—That is right—a fading star. I fear for a lot of the workers in Australia. They are people who are looked after by the likes of Senator George Campbell. The former Labor leader Paul Keating said of Senator George Campbell that he had 100,000 dead men around his neck. Mr Keating at least knew that union organisers, like the group that we have opposite in the Senate, are not there in the best interests of the workers. They are only interested in their own position and in manipulating their political puppets—the politicians in the Labor Party.I am forever sorry, as I know all genuine Labor people are, that a Labor Prime Minister had to bring in overseas workers to break a strike. He not only brought in overseas workers but he also brought in the troops. Remember the air force? They were very reluctant starters, I might say. But the air force were ordered to come in to break a strike of Australian workers. Why didn't the then government want to support that union? Was it because they were highly paid people? Is that why the then government did not want to support them? What about the wharfies? The wharfies get $80,000 on average—a little bit more than the average Australian worker. There would not be many airline pilots who would get that particular pay. Yet the Labor Party brought in overseas workers to break that strike. It was a Labor Prime Minister, supported by all those who happened to be over on that side at that time. Not one of those people raised their voice to stop overseas scabs and the troops being brought in to break that union's strike.1I4McKIERNANSenator McKiernan—Madam Deputy President, I take a point of order. My point of order is that Senator Ian Macdonald is misleading the chamber. He is referring to an incident some years ago which, at the time, had the wholehearted support of the then opposition. It was when the commercial airline pilots resigned; there was no strike. Senator Ian Macdonald travelled on the RAAF aircraft.10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Order! Senator McKiernan, there is no point of order.EP5FERGUSONSenator Ferguson—I raise a point of order, Madam Deputy President. If Senator McKiernan can stand for two minutes to make a point of order which has no relevance whatsoever to what is being said, and you do not sit him down, perhaps while he is on his feet he could explain why the country he left can move twice as many containers as the country he has come to.10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Senator Ferguson, there is no point of order.YW4Macdonald, Sen IanSenator IAN MACDONALD—Madam Deputy President, I want to take Senator McKiernan's point because I never travelled on a plane that was driven by strikebreakers—mainly because I was not in parliament at the time—but Senator McKiernan did. And Senator Ray, were you the defence minister who ordered those troops in to break the strike? You were the defence minister and you ordered the troops in. What a disgrace.UI4RAYSenator Robert Ray—No, I was not.YW4Macdonald, Sen IanSenator IAN MACDONALD—Oh, you weren't the defence minister. I am sorry. You weren't the defence minister.Senator Robert Ray interjecting—YW4Macdonald, Sen IanSenator IAN MACDONALD—Oh, you were the immigration Minister. You brought in the foreign workers. You didn't send the troops in; you allowed the foreign workers in.10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Order! The time for the debate has expired.Question resolved in the affirmative.236410001CLERK ASSISTANTThe Clerk—A petition has been lodged for presentation as follows:2364251X4West Sen SueTo the Honourable the President and Members of the Senate assembled in Parliament.This petition of certain citizens of Australia draws to the attention of the Senate, decisions by the Howard Government affecting the price and availability of medicines.The decisions to remove (delist) a number of drugs from the Pharmaceutical Benefits Scheme and also the decision to pressure people to switch to cheaper, older and less effective drugs, will disadvantage the less well off in our community who will not be able to afford the best most suitable drugs, the drugs their doctors have prescribed for them.Your petitioners therefore pray that the Senate recognises that these changes are unfair. We call on the Government to reverse these decisions immediately.Senator West1X4Senator West(from 25 citizens)Petition received.Notices236423642364Ray, 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 62 days since the Prime Minister (Mr Howard) defied his own guidelines.23642364Bourne, Sen VickiSenator BOURNETW4NSWAD00—I give notice that, on the next day of sitting, I shall move:That the Senate—(a) notes: (i) the action of Australian film distributors Village Roadshow in not distributing in Australia the new Martin Scorsese film, Kundun , about the early life of His Holiness the Dalai Lama and the Chinese takeover of Tibet, and (ii) that similar action has been taken by the United States (US) film distributors, Disney, which has reportedly hired Mr Henry Kissinger to arrange for a `low key' restricted release of the film in a very limited number of cinemas in the US;(b) acknowledges the protests of the Australian Tibet Council that this film will not be shown in Australia, especially given the film's importance in depicting the life of the spiritual leader of the Tibetan people and the effect that the Chinese invasion has had on their culture and religion; and(c) notes: (i) the inherent and intolerable dangers of political censorship, and (ii) that the perception of political censorship which would arise out of the film not being screened in Australia is likely to cause more problems for the relationship between China and Australia than if the film were to be screened unopposed. 23652365Stott 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) diverting funds to private providers through an artificial training market, (ii) slashing thousands of jobs, and (iii) cutting TAFE courses; and(b) supports the role of TAFE as the premier provider of technical and further education.23652365Schacht, Sen ChrisSenator SCHACHT4J4SAALP00—I give notice that, on the next day of sitting, I shall move:That the following matter be referred to the Economics References Committee for inquiry and report by the last sitting day of August 1998:The need for a uniform national retail tenancy code, with particular reference to:(a) the present effectiveness of the existing State and Territory regulatory framework;(b) the need to eliminate duplication between State and Federal Governments in this regard; and(c) any required legislative changes to implement such a code.23652365Tambling, Sen GrantSenator TAMBLING6E4NTCLP10—At the request of respective senators, I withdraw general business notices of motion as shown in the list circulated in the chamber.The list read as follows—36, 39, 127, 171, 191, 265, 419, 457, 468, 563, 610, 635, 639, 647, 652, 660, 688, 690, 698, 699,706, 722, 732, 737, 741, 746, 759, 769, 771, 773, 784, 788, 830, 849, 853, 856, 861, 863, 871, 876, 880, 882, 885, 886, 893, 895, 911, 915, 917, 918, 919, 922, 927, 929, 932, 933, 935, 936, 949, 951, 955, 959, 963, 967, 968, 970, 974, 977, 981, 987, 988, 989, 992, 993, 994, 996, 997, 998, 1000, 1001, 1004, 1009, 1017, 1022, 1024, 1030 and 1036.23652365Stott Despoja, Sen NatashaSenator STOTT DESPOJA3I6SAAD00—I give notice that, on the next day of sitting, I shall move:That the Senate—(a) notes that, on 2 April 1998, Haigh's Chocolates launched the 1998 Easter Bilby;(b) commends Haigh's Chocolates for contributing proceeds to the Anti-Rabbit Research Foundation of Australia (ARRFA);(c) notes that the ARRFA works to protect endangered species as well as controlling rabbits which destroy Australia's environment; and(d) calls on: (i) all Australians to support the Easter Bilby, and (ii) the Government to support the work of ARRFA.Committees2365236523652365Calvert, Sen PaulSenator CALVERT5F4TASLP10—I present the fifth report of 1998 of the Selection of Bills Committee.Ordered that the report be adopted.5F4Calvert, Sen PaulSenator CALVERT—I seek leave to have the report incorporated in Hansard .Leave granted.The document read as follows—SELECTION OF BILLS COMMITTEEREPORT NO. 5 OF 19981. The Committee met on 7 April 1998.2. The committee resolved:That the provisions of the following bills be referred to committees:Bill titleStage at which referredLegislation committeeReporting dateAustralian Prudential Regulation Authority Bill 1998 (see appendix 1 for a statement of reasons for referral)immediatelyEconomics13 May 1998Authorised Deposit-taking Institutions Supervisory Levy Imposition Bill 1998 (see appendix 1 for a statement of reasons for referral)immediatelyEconomics13 May 1998Authorised Non-operating Holding Companies Supervisory Levy Imposition Bill 1998 (see appendix 1 for a statement of reasons for referral)immediatelyEconomics13 May 1998Financial Institutions Supervisory Levies Collection Bill 1998 (see appendix 1 for a statement of reasons for referral)immediatelyEconomics13 May 1998Financial Sector Reform (Amendments and Transitional Provisions) Bill 1998 (see appendix 1 for a statement of reasons for referral)immediatelyEconomics13 May 1998Financial Sector (Shareholdings) Bill 1998 (see appendix 1 for a statement of reasons for referral)immediatelyEconomics13 May 1998General Insurance Supervisory Levy Imposition Bill 1998 (see appendix 1 for a statement of reasons for referral)immediatelyEconomics13 May 1998Life Insurance Supervisory Levy Imposition Bill 1998 (see appendix 1 for a statement of reasons for referral)immediatelyEconomics13 May 1998Payment Systems (Regulation) Bill 1998 (see appendix 1 for a statement of reasons for referral)immediatelyEconomics13 May 1998Retirement Savings Account Providers Supervisory Levy Imposition Bill 1998 (see appendix 1 for a statement of reasons for referral)immediatelyEconomics13 May 1998Superannuation Supervisory Levy Imposition Bill 1998 (see appendix 1 for a statement of reasons for referral)immediatelyEconomics13 May 19983. The Committee resolved to recommend—That the following bills not be referred to committees:. Aboriginal and Torres Strait Islander Heritage Protection Bill 1998. Crimes Amendment (Enforcement of Fines) Bill 1998. Customs Tariff Amendment Bill (No. 1) 1998. Interstate Road Transport Amendment Bill 1998 . Interstate Road Transport Charge Amendment Bill 1998. Veterans' Entitlements Amendment (Male Total Average Weekly Earnings Benchmark) Bill 1998The Committee recommends accordingly.4. The committee deferred consideration of the following bills to the next meeting:(deferred from meeting of 31 March 1998). Australian Hearing Services Reform Bill 1998(deferred from meeting of 7 April 1998). Australian Science, Technology and Engineering Council Repeal Bill 1998. Payment Systems and Netting Bill 1998. Taxation Laws Amendment Bill (No. 4) 1998. Telecommunications (Carrier Licence Charges) Amendment Bill 1998(Paul Calvert)Chair7 April 1998Appendix 1Name of bill:Wallis Inquiry Legislation (11 bills)Reasons for referral/principal issues for consideration:The legislation involves a complete reorganisation of the regulation of the financial sector in Australia. This needs to be closely examined by the Senate. Issues include consumer protection, bank merger policy, impact on staff.Possible submissions or evidence from:CPSU, FSU, consumer groups, credit unions, banks, Reserve Bank of Australia, Institute of Actuaries.Committee to which bill is to be referred:Senate Economics Legislation CommitteePossible reporting date:April/May 1998Possible reporting date:May 1998(signed)S. ConroyWhip/Selection of Bills Committee memberBusiness23672367Motion (by Senator Carr) agreed to:That general business notice of motion No. 1069 standing in the name of Senator Carr for today, relating to the failure of the government to respond to questions and reports on education, be postponed till the next day of sitting.2367Motion (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.2367Motion (by Senator Bourne, at the request of Senator Lees) agreed to:That business of the Senate notice of motion No. 1 standing in the name of Senator Lees for today, relating to the disallowance of the Carrier Licence Conditions (Optus Mobile Pty Ltd) Declaration 1997, be postponed till 13 May 1998.2367Motion (by Senator Bourne, at the request of Senator Lees) agreed to:That business of the Senate notice of motion No. 2 standing in the name of Senator Lees for today, relating to the disallowance of the Carrier Licence Conditions (Optus Networks Pty Ltd) Declaration 1997, be postponed till 13 May 1998.2367Motion (by Senator Bourne, at the request of Senator Lees) agreed to:That business of the Senate notice of motion No. 3 standing in the name of Senator Lees for today, relating to the disallowance of the Carrier Licence Conditions (Vodaphone Pty Ltd) Declaration 1997 disallowance, be postponed till 13 May 1998.2367Motion (by Senator Margetts) agreed to:That general business notice of motion No. 1083 standing in the name of Senator Margetts for today, relating to Western Australian abortion laws, be postponed till the next day of sitting.2367Motion (by Senator Bourne, at the request of Senator Woodley) agreed to:That business of the Senate notice of motion No. 4 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. 2368Motion (by 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.2368Motion (by Senator Bourne, at the request of Senator Woodley) agreed to:That business of the Senate notice of motion No. 6 standing in the name of Senator Woodley for today, relating to the reference of matters to the Rural and Regional Affairs and Transport References Committee, be postponed till the next day of sitting.2368Motion (by Senator Chris Evans, at the request of Senator Bolkus) agreed to:That business of the Senate notice of motion No. 5 standing in the name of Senator Bolkus for today, relating to the reference of matters to the Legal and Constitutional References Committee, be postponed till the next day of sitting.2368Motion (by Senator Calvert) agreed to:That general business notice of motion No. 1090 standing in the name of Senator Calvert for today, relating to a Natural Heritage Trust grant, be postponed till the next day of sitting.2368Motion (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.2368Motion (by Senator Chris Evans, at the request of Senator Faulkner) agreed to:That general business notice of motion No. 1089 standing in the name of Senator Faulkner for today, relating to the definition of associated entities in the Commonwealth Electoral Act, be postponed till the next day of sitting. 2368Motion (by Senator Chris Evans, at the request of Senator Denman) agreed to:That general business notice of motion No. 1086 standing in the name of Senator Denman for today, relating to the funding of services for the intellectually disabled in Tasmania, be postponed till the next day of sitting.2368Motion (by Senator George Campbell) agreed to:That general business notice of motion No. 1084 standing in the name of Senator George Campbell for today, relating to the response of the government to estimates questions on notice, be postponed till the next day of sitting.Miscellaneous236815:56:002368Brown, Sen BobSenator BROWNQD4TASAG00—I seek leave for general business notice of motion No. 1081 standing in my name for today, relating to logging along the Goolengook River in East Gippsland and a call to the Victorian government—which I understand wants to enact retrospective legislation on this matter tomorrow—to be taken as formal.Leave granted.QD4Brown, Sen BobSenator BROWN—I move:That the Senate—(a) notes that: (i) the Victorian Government authorised logging 100 metres into the 200-metre heritage river area along the Goolengook River in East Gippsland, and (ii) heritage rivers, like national parks, are protected by legislation which was in place when the East Gippsland Regional Forest Agreement was signed; and(b) calls on the Federal Government to ensure that the Victorian Government meets its environmental obligations and, in particular: (i) conducts all future logging operations in East Gippsland in accordance with the law, (ii) complies with the spirit and provisions of the Heritage Rivers Act, as passed in 1992, and (iii) adds sufficient forests to Victoria's national parks to compensate for those heritage river areas that have been destroyed.Question resolved in the affirmative.Matters of Urgency2369236910000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—I inform the Senate that the President has received the following letter, dated 8 April 1998, from Senator Mackay:Dear Madam PresidentPursuant to standing order 75, I give notice that today I propose to move:That, in the opinion of the Senate, the following is a matter of urgency:The recklessness of the Howard Government in inciting industrial conflict on the waterfront and inflicting unnecessary hardship on thousands of Australian workers and their families.Yours sincerelySue MackayIs the proposal supported?More than the number of senators required by the Standing Orders having risen in their places—10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—I understand that informal arrangements have been made to allocate specific times to each of the speakers in today's debate. With the concurrence of the Senate, I shall ask the clerks to set the clock accordingly.15:57:002369Mackay, Sen SueSenator MACKAY9L6TASALP00—I move:That, in the opinion of the Senate, the following is a matter of urgency:The recklessness of the Howard Government in inciting industrial conflict on the waterfront and inflicting unnecessary hardship on thousands of Australian workers and their families.Today is the day that this government condoned the illegal sacking of 1,400 Australian workers. Today is the day that this government put every Australian worker on notice: `Step out of line and you'll be sacked. Join a union and you'll be sacked. Get in the way of this government's agenda and you'll be sacked.' Today is the day that this government said to every Australian worker, `Don't get too relaxed and comfortable, your jobs are on the line. Get in the way of this government and you'll be sacked.' Today is the day that Australians will say—and they have been saying it so far—`This government has gone too far. Enough is enough, we're not going to cop it. The line in the sand is drawn here.' You only have to listen to the response on talkback radio today to know that the government has made an utterly disastrous strategic mistake with regard to this.It is a black day for industrial relations, it is a black day for Australian workers and it is a black day when an elected government supports a breach of its own act and its own legislation. This action is in no way justifiable. In fact, it exemplifies the mean-spirited nature of this government with regard to Australian workers—not just Australian unions but Australian workers. This has not happened by accident. I noticed with interest that, when Patrick made their announcement last night, the release from Patrick about their intention to sack and the release from the office of the Minister for Workplace Relations and Small Business (Mr Reith) about his response to that were simultaneous.This issue has a very long history, and so has what I would regard as the other side's historic contempt for organised labour. They have shown a complete inability to actually understand what an equitable relationship between a worker and his or her employer is. I was actually quite shocked with some of the comments made today by the Minister representing the Minister for Workplace Relations and Small Business, Senator Alston. For a minister of the Crown to get up in here and call a group of people who have just been sacked and deprived of their livelihoods `greedy thugs' is totally and utterly offensive.To make comments like `they would not work in an iron lung' and `they have never done a day's work' about people who have just lost their jobs just before Easter and then to compound it by calling them greedy thugs just about sums this government up in terms of what it thinks. The MUA and the 1,400 people who have just been sacked are not the greedy thugs in this debate; the greedy thugs are sitting over on the other side of the chamber. That is the reality.5F4CALVERTSenator Calvert—Madam Deputy President, I raise a point of order. I object to being called a greedy thug.9L6Mackay, Sen SueSenator MACKAY—On the point of order: I did not call Senator Calvert a greedy thug; I called the people sitting on the other side of the chamber greedy thugs.H15CAMPBELLSenator Ian Campbell—There are four of us over here, and I take objection too, Madam Deputy President.10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—It has been interpreted as an imputation upon the individuals, so I ask you to withdraw, Senator Mackay.9L6Mackay, Sen SueSenator MACKAY—Is it unparliamentary?10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—It was interpreted as an imputation against the individuals on the opposite benches to you, and that is unparliamentary.9L6Mackay, Sen SueSenator MACKAY—I withdraw. What is the basis for these sackings? The sackings are illegal, and people on the other side know they are. That is why not one person who spoke from the government side today either in the House of Representatives or in the Senate was able to justify it. In supporting this action, you have breached your own legislation, and you know it. Senator Alston was sitting over there. He got at least four questions with regard to this—he is a lawyer, I believe—and he was not able to answer it, and there is a reason: it is because it is a breach of the act that Peter Reith himself has trumpeted as a benchmark with regard to industrial relations in Australia. Let us have a look at how the government has gone about this. I think Senator O'Brien has amply described what happened specifically with regard to this dispute. I want to talk about what has happened to industrial relations in this country under this government. The first thing that happened was that the government introduced AWAs. I notice now there has been some movement but basically very poor pick up. The idea behind AWAs is that, if you do not sign the AWA, you do not get a job. They are secret, you cannot find out how much people earn and you have seven minima in terms of what you are allowed. The next thing is that the government tried to amend their own legislation with regard to unfair dismissals so that people could be sacked at whim. How prophetic that was when you look back at that debate in terms of what has happened today. Now we have a government-condoned mass sacking of workers in Australia, but there is no need for the unfair dismissal provisions there. They have legislation there. They have their own act there. What do they do? They ignore it. It is absolutely crystal clear what the situation is here. Section 170CK(2)(b) of the Workplace Relations Act 1996 says that the employment of a worker cannot be terminated on the basis of membership of a union. Section 170MU says that you cannot terminate an employee for participating in protected industrial action. Section 170CL(2) requires that the CES be informed when an employer decides to terminate the employment of 15 or more employees. The award itself, under which these workers are covered, requires that three days notice be given to workers and their unions where significant industrial change is proposed.Patricks is clearly in breach of all three provisions and the government is in breach of all three provisions in terms of their own legislation which they trumpeted as a triumph with regard to industrial relations. The bill that Mr Reith moved this morning provides $250 million to assist this illegal sacking of 1,400 workers, but this government will do nothing about the $9 million that is owed to miners at Cobar in relation to their redundancy entitlements and other areas. What does this action mean for average workers? It is not just about the waterfront. This means workers can forget about the relaxed and comfortable stuff. How relaxed and comfortable do you think the 1,400 workers who have just been sacked one day before Easter are feeling? Not very relaxed and comfortable. Forget the promise that no worker will be worse off. How do you think the 1,400 workers who have been sacked are feeling? Do you think they are feeling worse off? I suspect they are. Forget the promise that workers will have choice. This is a word that the government uses a lot with regard to union membership. They say, `It's your right to choose. You can choose.' You can choose to be sacked: that is what the choice is. So much for this government's commitment to choice. Who is next on the government's hit list? Who has crossed the government? We know the Public Service has, and look what has happened to it. How many public servants have lost their jobs? Look at the restructuring of the Public Service Act. This government does not like public servants either. So you do not like people who work on the wharf, you do not like public servants and you do not like groups that speak up against the policies of this government. Who is next? That is what the people of Australia are going to be asking themselves.This is not about waterfront productivity. I, along with my colleagues, am sick to death of the unctuous nonsense coming from the other side of the chamber with regard to whether this is about waterfront productivity. The government itself set a productivity benchmark of 25 containers an hour. P&O are at 24 at the moment and rising. So much for that. As Senator O'Brien alluded to earlier, Burnie wharfies in my home state of Tasmania have set an Australian record for container loading, and they have just been sacked. They have just set a record and they have just been sacked. What about that, Senator Calvert? What about that? This is about manufacturing an election issue. I believe it constitutes the cynical use of innocent workers and their families for political gain. This government is sending out a number of signals today and they include: get in the way of the political agenda and you will be sacked and if you join a union you will be sacked. I have to say that, in terms of cynical action, this is also about the political ambitions of Minister Reith. That is what it is about. Fourteen hundred workers have lost their jobs because Minister Reith is concerned about the Treasurer, Minister Costello. So it is about the numbers also in the Liberal Party, and that is absolutely pathetic. Enough is enough. Average Australians are and will be utterly horrified by this action. This is dreadful. This government has gone too far. I know how those on the other side think. I have to say that they have made a major tactical blunder here today—an absolute tactical blunder—and it will not be forgotten. You only have to listen to talkback radio to see the kind of reaction you are getting in relation to this. You have breached your own act. You have thrown your own law out the window and you have exposed yourselves as being an absolute disgrace of a government.16:06:002371Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—The motion that Senator Mackay has moved—even though she said two minutes into her speech that she did not intend speaking on it but Senator O'Brien would probably turn his attention to it—is in relation to industrial conflict on the waterfront and the hardship imposed on thousands of Australian workers. I say that it is indeed the lives of Australian workers that motivate the Australian government in taking its action to introduce industrial relations reforms to the Australian work force and in making sure that the waterfront and Australia as a whole benefit from those reforms.As I heard Senator Chapman saying a few minutes ago, it is vital that Australia, as an island nation, perform in an internationally competitive way. `International competitiveness' is really a sort of economist's cliche because it does not mean a lot to average Australian households. But what does mean a lot to average Australian households is that they live on an island. All Australians live on an island, be it in Tasmania or on the Australian mainland, and the majority of our exports need to go across a wharf to the overseas marketplace.I think all Australians understand that if we are to fulfil our potential as a nation and that if the individuals who form the nation are to maximise their living standards and the potential that the nation offers to all her citizens, then we have to be able to export goods and services. We need to be able to do that in a way that competes with the rest of the world. So if we are going to produce doors, doorknobs, screws and nails, or if we are going to produce pallets of cement or any of those goods and services, we must ensure that our waterfront is an efficient part of the process. And that applies not only to our waterfront. We also need to ensure that our road, rail and shipping systems are all absolutely up to standard. We cannot abide a situation where we have a waterfront that cannot even make the lowest grade in terms of international competitiveness. We cannot have a situation where a crucial gateway to Australia's trade, both inbound and outbound, is blocked up; where a brick wall has been put up by a bunch of people who do not have Australia's best interests at heart.If you want to produce something in Australia to sell to a consumer in the United States, you are not only competing against someone down the road in Australia but you are also competing against other people all around the world who are trying to sell the same consumer goods to the same consumers in a state in the United States. If you want to export something there, if you want to attract orders, you have to go and show that your product is good quality, that your product is competitively priced so that the consumers will buy it when they go into the shops in the United States, and you have to ensure that you can deliver it on time.If you cannot get it across the waterfront because there have been strikes by members of the MUA, who are supposed to be shifting stuff across the wharves and onto the ships, you will not get it there on time and the costs of supplying it will go up. So Australia will become an unreliable supplier. Unfortunately that is our reputation in many of these areas, and certainly it was our reputation under the former government where we had strike after strike. Certainly the people who are the customers of ships that have been handled by Patricks would see this.We do need to look at some of the comparisons. Senator Cook, one of the people who stood shoulder to shoulder with the wharfies in this dispute, said, `Look, they're okay; they are world competitive.' He said, `They are okay; they are up to standard, and it is not fair to compare them with Singapore.' We accept Senator Cook's argument. Don't compare them with Singapore; compare them with workers in places like Auckland, Thailand, Hong Kong or any of these other places that are directly comparable.Quite frankly, Australia cannot afford to be just equal to some of these other ports around the world. There is no reason why Australia should not be better. The Labor Party would say, `We're achieving 24 container movements. Every now and again we get to 24.' The average of course is 18. If they can achieve 33 container movements one afternoon so they can get off early to go to a strip show, the Labor Party says, `That's great; we achieved it in one afternoon, so we have achieved it. We don't need reform.' They are saying that we do not need reform.Under Labor we had this thing called the Waterfront Industry Reform Authority, the WIRA process that former Senator Bob Collins was put in charge of and that former Prime Minister Bob Hawke obviously had a big hand in. These people opposite are complaining about spending money to assist in the restructuring of the waterfront now, but they spent half a billion dollars on the waterfront under that process. It was an absolute joke of a process. What did they achieve? You have only to turn to Captain Setchell and what he said about the achievements. I shall paraphrase him because I cannot find the bit of paper. He said that we have paid out all of this money, we now have higher wage rates; the wharfies are paid more and we have lower productivity as a consequence of this four- or five-year process that cost Australian taxpayers half a billion dollars.Labor's approach then was, `Let's pay them all out, use taxpayers' money to pay them all out and try to achieve productivity that way.' What did they get? Lower comparative productivity because, while we were spending four or five years and $500 million trying to improve productivity, everyone else around the world moved ahead. So for $430 million—to be exact—we ended up with lower productivity, higher paid wharfies and more disputes than we had ever had before.That was Labor's approach in government. In opposition it has taken until today to have any approach out of the opposition at all on waterfront reform. The only thing that Mr Beazley has come up with to date is to say, `We would have a little pow-wow. We would get old Bob; we would get the silver bodgie to come in and create a bit of consensus. We will have Bob come back.'10000ACTING DEPUTY PRESIDENTThe ACTING DEPUTY PRESIDENT—Order! Senator Campbell, it might be more appropriate if you refer to a former Prime Minister by his proper name.H15Campbell, Sen IanSenator IAN CAMPBELL—Indeed; it was not a polite thing to call Mr Hawke. I will withdraw. But that is their policy. They have not said anything about the wharfies for about the last three or four months—since Christmas. Since all this was going on they have not said anything about the wharfies in all that time. It has taken this decision by Patrick to restructure their work force and contract out to smoke them out. But I think it is good to see the Australian Labor Party smoked out on this issue. At least they have to stand by their fraternal brothers in the union movement.I should not get waylaid. I think it is important to focus on what is so important about this debate. I do not think many Australian people see this current dispute and the waterfront reform process as anything to do with mainstream Australia. That is what they need to see this as. It very much affects mainstream, main street Australia. It is about creating jobs; it is about ensuring that Australia's businesses are able to compete in the European, South-East Asian and the American markets on a fair footing with international competitors.This government has decided that we do not want to add unnecessary cost to our exporters, many of them small businesses trying to forge markets in the United States and Europe. We do not want to hang a lead weight around their neck before their goods get over the horizon of the Pacific Ocean or the Indian Ocean, out of our ports.I ask Australian people who are listening to this debate over the next few days to contemplate this: when you see a ship tied up in port with containers being loaded on it, all of those containers should have `jobs' written on the side of them, because the more containers that move over that horizon, out of those ports, and the quicker they move, the more jobs are created.AW5CARRSenator Carr—There won't be too many moving, thanks to you.H15Campbell, Sen IanSenator IAN CAMPBELL—Senator Carr is saying there are not going to be many containers moving, so he is threatening to close down the waterfront. Come in spinner, Senator Carr. We want to ensure that the containers move across the waterfront quicker than ever before, and that more jobs are created in Australia because our exports are up.Honourable senators on the other side would like to see the Australian waterfront closed down. That is why they are standing by the union; that is why they are standing by the threats to close down Australia's waterfront. When you close down the waterfront or you make it go slow, you make Australia go slow. We want Australia to achieve its potential and it cannot achieve its potential unless we have one of the best waterfronts in the world and not one of the worst. We are looking for one of the best waterfronts in the world; we are looking for one of the best economies in the world; we are looking for the best employment growth in the world; and the best performance in the economy. You do not get that with a waterfront that is stuck in a previous era.16:16:002373Murray, Sen AndrewSenator MURRAY3M6WAAD00—The Democrats will be supporting this urgency motion. We are of the opinion that the action of the Howard government on the waterfront has been reckless and provocative. Let me start from first principles: the Australian Democrats are strong supporters of further waterfront reform. We accept that there has been much progress since 1990 and in areas like bulk terminal handling, we are advised that Australia is at or near world's best practice.Indeed, in my own state of Western Australia, farmers and graziers were at pains to distance themselves from the NFF eastern states rhetoric on this matter. They were at pains to indicate just how good the bulk handling in my state was. But in the container area, governments have rightly made the point, as have many other political parties and sources, that progress does need to be made. But even here, different ports are at different levels of productivity and there are different issues between the ports. That highlights the need for workplace level negotiations, for reform to be relevant to the place where the problem is.The problem is not uniform right across Australia. That is why we supported the Workplace Relations Act, so that reform could be devoted to the enterprise where the particular problem was. Let me read the first paragraph of that act to you:The principal object of this Act is to provide a framework for cooperative workplace relations which promotes the economic prosperity and welfare of the people of Australia . . . I do not see much that is cooperative about sacking 1,400 people. That is a gross infringement of the civil rights of the workers of Patricks to join and participate in union activity. People cannot come into this chamber now and say, `Look, this isn't about union bashing; this isn't about getting at a union; this is about competition and productivity.' Just read the newspapers and the Hansard records of exactly what the government has been saying about this issue. It has been bash, bash, bash, at the whole principle of workers belonging to unions. That is wrong. We believe in freedom of association. Australian workers not only should be entitled to belong to unions, but they should be encouraged to belong to them. They act in their interests, just as employers should be encouraged to belong to employer organisations.We think the infringement of the civil rights of the workers at ports like Townsville and Fremantle is extraordinary, because in those ports there has not even been any industrial action. The actions of the Minister for Workplace Relations and Small Business (Mr Reith) in rewarding a company with a guaranteed $250 million of government loans is not an action that is even handed and is not an action that promotes a cooperative industrial relations environment.Most of all, we think it is a breach of the Workplace Relations Act. Freedom of association provisions in sections 170CK, 170MU and 298K of the coalition's own act make it abundantly clear that employers cannot sack employees for joining unions, for participating in protected industrial action, or for being dissatisfied with the employment conditions.It seems clear to us that there is a case that these provisions, these vital protections of employees' human rights, have been breached in this instance. Section 170CL requires the employer to notify the CES of mass terminations. Section 170GA requires employers to consult with unions on mass redundancies. That, too, has been breached. The award itself appears to have been breached, which is again protected by the act. The act is the coalition's act. The act is designed to protect the interests of both employers and employees.We think that this particular employer has trampled over the minister's own Workplace Relations Act. If it was a union trampling over the law, this government would have been up in arms. Here we have an employer breaching the law and what happens? They are rewarded with a $250 million loan and in what must be the fastest drafting of a bill in Australian history—because we all believe in this place that the minister did not, of course, know of Patricks' action until late last night; they just worked overnight to produce this bill rapidly—the legislation to sanction their action was ready to be tabled first thing this morning. If only the fair trading small business legislation could have moved so fast, or if only the anti-transnational avoidance of tax provisions could be introduced so fast.What does this bill do? What contribution does it make to waterfront costs and charges? The extraordinary thing to me is that it adds to them. Every time a container is loaded, whether it be by Patricks, P&O or Sealand—they have all had no industrial problems, apart from Patricks—it will cost an extra $20 a container. Every time a vehicle is unloaded, it will cost an extra $10 a container.Maybe the government is going to say to us, `Short-term pain, long-term gain.' It remains to be seen. In the meantime, in Tasmania in particular the cost to move goods in and out of that state is going to rise very considerably. To achieve what? To achieve exactly what the Labor government did previously, which was to reduce the number of workers and to provide them with redundancy packages. The difference is that the Labor government negotiated that outcome. If it was the intention of the government to reduce the number of workers and provide them with a redundancy package, why not negotiate it and save us all this pain?Many of the 1,400 workers were not in dispute with their employer. As a former business person, I say, `What a cheek.' An employer is being helped out and other employers who had absolutely nothing to do with the dispute are going to have to pay for it. I think that is grotesque. Why should other employers have to pay for the Patricks dispute? What happens if the sackings are overturned by the Federal Court?In the meantime—and the coalition does like to talk about mums and dads—what does the government say to those 1,400 mothers and fathers facing Easter with the breadwinner on the dole line? That is what they are. They are not ogres or demons. They are Australian mums and dads. You have got to have the same attitude to them as you have to all other Australians faced with the agony of losing a job.What sort of message are we sending to all belligerent employers? What sort of message do we send to the Cobar workers and the Woodlawn miners who asked the government to help their company find redundancy money only a few weeks ago? I know that is a different case. I know they are companies that went bankrupt, but to those workers it is no different. Those workers lose their jobs and they lose their living.What we see here are large doses of hypocrisy, inconsistency, unfairness, recklessness and ignorance of the law. What I am angry about is that I am strongly committed to improving productivity and reforming our society to advance the overall wealth of the society. This action will have the ultimate effect of delaying and damaging permanent reform.Only last week Australia's shipowners reached a groundbreaking deal with the MUA to remove cost impediments in Australian shipping. We had another groundbreaking deal with Sealand to open a new stevedoring operation in Brisbane. Against that was the stupid decision of the Western Australian government to force one of the two stevedoring companies at the very large port of Dampier off the wharves.If this is about competition, what on earth is the government doing supporting monopoly profits? If you are against monopoly profits in the hands of unions, you have to be against monopoly profits in the hands of employers. If you are interested in competition, for goodness sake be consistent with it. What chance is there now for further reform?Both employers and employees are damaged by the division which is going to be caused by this problem. I share the concern expressed by the Australian Business Council's Managing Director, Phillip Holt, today that all the drama of the last 24 hours will remove the proper focus from the substantive issues of diversity and competition. Regrettably this has been about attacking the rights of workers to have freedom of association. I resent and regret that. It is a principle which the Australian Democrats hold dear. I appeal to the government to reconsider and to try to lower the temperature and the aggression in this issue and restore some sort of situation where these workers may recover their jobs. (Time expired)16:26:002375Carr, Sen KimSenator CARRAW5VICALP00—Every worker in Australia is threatened by this government's actions in regard to the waterfront. The security of every Australian working family is threatened by the actions of this government, made up of its millionaire ministers who are based on rorting and on a commitment to breaking the trade union movement and undermining the security of Australian working families. For this reason, the waterside workers and the seafarers of this country will not be fighting this battle alone. The entire labour movement will rise to resist this vicious assault upon the right to organise and this vicious attack upon the rights of ordinary Australians to actually work.10000ACTING DEPUTY PRESIDENTThe ACTING DEPUTY PRESIDENT (Senator Patterson)—Senator Carr, you actually impugned all ministers by saying they were based on rorting. I ask you to withdraw that.AW5Carr, Sen KimSenator CARR—I withdraw. This is a government made up of millionaire ministers who have no concern for the welfare of ordinary working people. This is a government dedicated to launching a vicious attack upon the rights of ordinary working people to actually protect themselves and defend their standards of living. This is a government committed to undermining the security of those families. This is a government that will resist at all costs the rights of workers to actually defend themselves against arbitrary police state powers, private militias, guard dogs, police batons and barbed wire—all of which we are seeing in this dispute.This is a struggle that workers will advance to protect themselves against the knock on the door in the middle of the night and to defend themselves again deceitful, treacherous, underhanded employers who will conspire with this government of millionaire ministers, under the cloak of darkness, to seek to destroy the lives of 1,400 Australian workers. It is for this reason that wharfies and seafarers will be fighting this government. They will not be alone. They will have the whole labour movement with them.But it will not be just the labour movement that is with them. It will be all Australians who are genuinely concerned about civil liberties and human rights and the foundations of a democratic society. I believe there will be hundreds of thousands of middle-class people and professional groups, who would not normally rush to defend blue-collar workers, defending the rights of Australians against arbitrary sacking in the middle of the night under the prod of the riot baton and the snarl of the guard dog. They will defend the rights of working people to actually defend themselves and their civil liberties.Millions of Australians, in my view, will rally around the 1,400 workers who have committed no offence other than to be a member of a union; workers who at all times have acted lawfully. Under these atrocious laws of this government they have still acted lawfully and have been sacked. They have been sacked by a government as part of a conspiracy to build a political career of a particular minister in this government, to provide the election foundation that they are seeking in the run-up to the poll, an election strategy which is turning Australian against Australian. We see it with regard to the Wik legislation. We see it with regard to industrial relations. It is an attempt to turn Australian against Australian.The actions of this government in the last 24 hours have exposed the complete cant and hypocrisy of this government which proposes that it is concerned about the battler. This whole dispute has nothing to do with competition; it has everything to do with the political fortunes of a government that has been exposed. It has been exposed in terms of the conspiracy that is launched to undermine the security of those workers. We have seen in this dispute the arbitrary and illegal action of employers who are nothing more than the pawns of Penthouse Reith in their attempt—10000ACTING DEPUTY PRESIDENTThe ACTING DEPUTY PRESIDENT (Senator Patterson)—Order! Refer to honourable members in the other House in the appropriate way.AW5Carr, Sen KimSenator CARR—I will. This is a campaign born out of prejudice and hostility against working people by a minister who claims his concern is to prevent rorts, who himself is known in the trade as Penthouse Pete because of his association with Hudson Conway and his receipt for a 10 per cent discount from Hudson Conway at the tower of power in Melbourne.H15CAMPBELLSenator Ian Campbell—Madam Acting Deputy President, on a point of order: is it appropriate to call someone Penthouse Pete? I know what John Cain used to call this senator, but I would not use that. I did, without any resistance, withdraw my reference to former Prime Minister Bob Hawke when I called him the Silver Bodgie. I withdrew that.10000ACTING DEPUTY PRESIDENTThe ACTING DEPUTY PRESIDENT—Thank you, Senator Campbell.656FORSHAWSenator Forshaw—On the point of order—10000ACTING DEPUTY PRESIDENTThe ACTING DEPUTY PRESIDENT—I am speaking, Senator. Senator Carr referred to the way in which the minister was referred to. It would have been better had he not done that, but I believe that is acceptable.H15CAMPBELLSenator Ian Campbell—On a further point of order: so it is okay if people refer to the former Prime Minister as the Silver Bodgie then?10000ACTING DEPUTY PRESIDENTThe ACTING DEPUTY PRESIDENT—I would prefer you did not do that, but it would be acceptable in the Senate.656FORSHAWSenator Forshaw—On the point of order—10000ACTING DEPUTY PRESIDENTThe ACTING DEPUTY PRESIDENT—I have ruled on the point order. Sit down, Senator Forshaw!656FORSHAWSenator Forshaw—On a point of order: is it appropriate for members of the government to describe innocent working Australians as greedy thugs?10000ACTING DEPUTY PRESIDENTThe ACTING DEPUTY PRESIDENT—It is not a point of order and you know that.AW5Carr, Sen KimSenator CARR—This is a campaign which has been highlighted as a conspiracy. We have seen the way in which I think particularly Senator O'Brien has demonstrated the consultancies that have been issued by this government—the $1½ million consultancy to provide the master plan. Despite defiance of this Senate, we have seen the refusal to supply these documents to this Senate in regard to the ACIL plan.We have seen a sinister conspiracy which has been developed over many months whereby this government, a senior minister of this government, former advisers of this government and senior Liberal Party businesspeople like Scanlan have been associated over a long period of time with a range of bodgie practices through the Elliott empire. We have seen the way in which the Dubai farce was developed, the Cairns waterfront debacle has emerged, the use of military personnel, and now the conspiracy involving the Queensland, Victorian and Western Australia government to produce the monopoly situation in the Port of Dampier.What we have here now is the exposure of this conspiracy by the way in which, overnight, two pieces of legislation have been prepared, allegedly within a 12-hour period, and introduced into this parliament at 9.30 this morning. This is a reckless and callous subjugation of the rights of Australian people to present a position of strength by this government in a very cheap and cynical manner, to present the political fortunes of Mr Reith in particular against those of Mr Costello.We have here, effectively, a very weak Prime Minister that allows these things to occur, to attempt to use 1,400 Australian workers and their families as political pawns to develop this government's election campaign. We note the involvement of KPMG, yet again—the favoured consultants of this government. We see the way in which they use KPMG partners to set up a quango to provide the $250 million for the sacking fund, which is proposed in these pieces of legislation which were introduced into parliament.I just make this point: conservative Prime Ministers have thought it was an easy mark to take on the waterside workers and the seafarers of this country. Lord Stanley Bruce, who stood in the same seat that this minister who is using this campaign is, found to his cost that he could lose all in these campaigns. Cheap, easy marks may not be the outcome of this struggle. What you will see is immense suffering, immense hardship, inflicted by this callous and reckless government which may find that the Australian people will not have this assault on human rights and civil liberties of Australian working people, and may say to this government that enough is enough.10000ACTING DEPUTY PRESIDENTThe ACTING DEPUTY PRESIDENT—Order! I have been advised that it is not parliamentary to use such references to somebody who is outside the chamber. I remind both honourable senators that it was not appropriate.16:36:002377Boswell, Sen RonaldSenator BOSWELLYE4QLDNP10—Let me say at the outset that no-one wants to see 1,400 people sacked.AW5CARRSenator Carr—And their families. Don't forget them!YE4Boswell, Sen RonaldSenator BOSWELL—And their families suffer. I totally acknowledge that. I want to say to the opposition: what do you expect an employer to do when there have been 38 days of rolling strikes? There were strikes in Melbourne which transferred to Sydney—ZW4SHERRYSenator Sherry—Were there any strikes in Burnie?AW5CARRSenator Carr—This is a conspiracy, Bozzie. You know it is a conspiracy.10000ACTING DEPUTY PRESIDENTThe ACTING DEPUTY PRESIDENT—Order! Senator Carr, you were listened to in silence. I expect you to do the same.YE4Boswell, Sen RonaldSenator BOSWELL—There have been 38 days of strikes at a cost of $10 million. What do you think an employer is going to do? He is not going to give you a prize for the best employee in the world. Your affiliates in the union movement forced Patricks to react. You gave them no way out. It was either sack or go broke. That is no way to negotiate and you people in the union movement must know that. You always give a way out.What you forced Patricks to do to survive was to change their work force. I acknowledge that a lot of people are probably good workers. In Burnie, as you have mentioned, they got caught in the crossfire. If you go into a battle, there is always going to be collateral damage. We all know that in politics every time we go to an election there is someone who gets caught in the crossfire. I say to senators on the opposition benches: what do you expect an employer to do? You push him into the corner, you nearly bankrupt him and then you expect him to give you a pat on the back. You gave him no way out. The only way Patricks could survive was to remove their work force and try to start again.I want to say that to you; I want to address this problem. Every industry in Australia—whether it has been the farming industries or manufacturing industries employing car workers or clothing workers—has had to face cold, hard deregulation. You have been screaming about it, Senator Carr, and I have made the odd speech about it myself. With regard to farmers, over the last 15 years we have reduced tariffs and increased competition in the domestic market; the wheat board regulation has gone; the corporatisation of numerous commodity boards, research and marketing organisations has taken place; the Hilmer reforms, led by your government, have come through with the legislation introduced by your government. The farming industry has had to deal with that in times of low commodity prices and drought and all those things.But you cannot deregulate everything and then say, `Here is one little sector of the market we have got to protect. Everyone else has had to cop their medicine but we have got to protect 2,000 or 3,000 waterside workers, and we will abandon every other industry.' That is what you are trying to do. It was your government—I do not say it was the left faction, but it was certainly the ALP government—that reduced and removed tariffs and deregulate the wheat board. You did all those sorts of things. We did not particularly like it at the time but we have come to accept it. But you cannot argue that there is this one sector of industry, the one jewel in the Labor crown, that you are going to stand up for—the waterside workers union. You have let the car industry go; you have deregulated it. You have reduced the tariffs. You have exposed people who work in the rag trade to international competition. All those sorts of people have had to accept—656FORSHAWSenator Forshaw—Cobar mines, meatworks.YE4Boswell, Sen RonaldSenator BOSWELL—And the meatworkers and everyone like that. Then you say, `Here is an industry with workers on 80,000 and 90,000 bucks a year, with all sorts of special privileges and additional advantages—you know them as well as I do—and we have to protect them.'ZW4SHERRYSenator Sherry—What are they?YE4Boswell, Sen RonaldSenator BOSWELL—Going to stop-work meetings and getting paid; and another couple of weeks holiday pay. They get all those special benefits. But you cannot protect them. You cannot desert the other couple of million blue-collar workers and say, `These are the blue-rinse set. These are the privileged union workers.' Let us look at it in the hard, cold light of day. There are 230,000 people employed directly in the mining industry. There are 360,000 employed in the agricultural sector. People in the bush—the abattoir workers—are depending on getting their goods out across the wharves so they can enjoy some financial stability. And what do we get? We get rolling strike after rolling strike. Then, of course, for every container that goes out—every meat container, every refrigerated container—there is an additional cost.ZW4SHERRYSenator Sherry—We are the most efficient in the world.YE4Boswell, Sen RonaldSenator BOSWELL—Yes, let's acknowledge that bulk loading is efficient, but that is not container loading.EU4O'CHEESenator O'Chee—Not containers.656FORSHAWSenator Forshaw—He is talking about bulk loading of commodities, you dope. What are you complaining about?YE4Boswell, Sen RonaldSenator BOSWELL—I am talking about the hard-pressed meat industry at the moment.10000ACTING DEPUTY PRESIDENTThe ACTING DEPUTY PRESIDENT—Order! Senator O'Chee and Senator Forshaw.YE4Boswell, Sen RonaldSenator BOSWELL—We are talking about 18 container movements an hour, where world's best practice is 30 container units an hour, and that is putting increased costs on our pastoral industry, on our abattoir workers. You cannot isolate the waterside workers and abandon every other worker. That is where your argument falls down.We are the worst performing stevedoring industry. How long can the government sit back and cop that? The fact is, it cannot. At a cost of $430 million, you tried to fix it up; $430 million of taxpayers' funds went to your friends in the union movement to try to get some younger people on the wharves; to get a different culture and different people on the wharves; and you did get a little bit of an advantage for a short time. But it slipped back to where you were. So that was $430 million of taxpayers' money down the drain.It is not as though we are exactly kicking these people off the wharves or just turning them loose. There is a very healthy redundancy package.656FORSHAWSenator Forshaw—It's their own money; it's their super.656Boswell, Sen RonaldSenator BOSWELL—I understand it ranges from about $200,000 to $250,000 down.AW5CARRSenator Carr—Superannuation is their money. YE4Boswell, Sen RonaldSenator BOSWELL—Of course it is super. But it is a redundancy package too.656FORSHAWSenator Forshaw—But they don't actually want to retire yet, Ron. They want to have a job, they want to work.YE4Boswell, Sen RonaldSenator BOSWELL—The government's benchmark objectives are aimed at reducing inefficiencies so that exporters can compete internationally. They include an end to overmanning and restrictive work practices. We are looking for higher productivity, less industrial action, reduced injury, lower costs for exporters and importers, and full and effective use of existing and new technology. (Time expired)16:44:002379Sherry, Sen NickSenator SHERRYZW4TASALP00—The issue we are debating in the Senate today in this matter of urgency concerns the recklessness of the Howard Liberal-National Party government. It is a reckless approach led by Mr Howard, and planned and executed by his minister for industrial relations, Mr Reith, to incite what I think will probably be one of the most significant industrial disputes this country has seen since World War II. There is no doubt that Minister Reith has been actively planning this approach to industrial relations for some months. There is clear evidence for that in the form of the legislation that he spoke to in the House of Representatives this morning.In my contribution to this debate I would like to refer to some of the assertions—I will not use `lie', because I know it is unparliamentary, but perhaps the term is terminological inexactitudes—that Minister Reith makes. He said that `our waterfront is inefficient, unproductive and unreliable by world standards.' A little bit later he does acknowledge that `the performance of seaborne bulk cargo terminals is generally accepted as already being internationally competitive.' That is a very major sector of our seaborne trade. He does acknowledge that that is competitive.But I would like to turn to a newsletter produced by P&O Ports of 3 March 1998 where they are comparing crane rates between Singapore, Adelaide and Fremantle. Singapore, interestingly, is a government owned monopoly port. The crane rate there is currently 26.8. In Adelaide, during this survey period, the crane rate was 28.6—superior to Singapore. In the case of Fremantle, the crane rate was 26.8, the same as Singapore. The item concludes with an appreciative message from a Mr Doug Schulz, an employee of P&O Ports. He said, `This was a good result. Well done to all involved.'Of course, Minister Reith in his continual misleading of the Australian people refuses to acknowledge any evidence that there has been significant improvement at the Australian waterfront. Certainly, over the last six years we have seen a 57 per cent reduction in the work force, we have seen a 127 per cent increase in the number of containers handled per person shift, we have seen a 25 per cent reduction in container terminal charges, and we have seen a 45 per cent reduction in ship turnaround times. We have seen some significant improvement.There can be further improvement—no-one disputes that. But this government's approach has been to be actively involved in the planning of the sacking of 1,400 workers who are not engaged in an industrial dispute. We would argue that that is illegal. It is against Mr Reith's own Workplace Relations Act that was passed in this Senate at the end of 1996. It is illegal to do that.Here we have Minister Reith and the Prime Minister (Mr Howard) actively entering into partnership with Patricks to break the law. If that was not bad enough, they are not just acting in partnership to break the law; they are going to underpin this deal to break the law with a levy on the industry to the tune of a quarter of a billion dollars—a $250 million levy across the industry on motor vehicles and containers, of $6 per vehicle and $12 per container. That is not going to be welcome news in my home state of Tasmania, because a lot of cars move in and out of Tasmania, a lot of containers. We are almost totally dependent on seaborne trade into my island state. It is not going to be particularly welcome there.But the entire industry has to pay this levy. So Patricks, who are in some commercial trouble and have decided to sack 1,400 workers, are being cross-subsidised by other private sector companies. It is a bit like the government introducing a levy across the entire financial sector, levying ANZ to help cross-subsidise the National Australia Bank in their sacking of 1,400 workers. It is a ridiculous and absurd approach.We are assured by the government that these costs will be met and absorbed by the industry through a new tax of $6 per vehicle and $12 per container. The fact is that the consumer who buys the goods that are transported as a result of this new tax will pay the extra cost. There is no way that the government can force a company like Patricks to absorb this additional new tax. There is no way they can do that.Further on in Mr Reith's speech he talks about an interesting new principle in industrial relations. He says, `Today the government is encouraging employers in both shipping and stevedoring to take immediate steps to normalise their employment practices in line with community standards.' I stress the words `to normalise their employment practices in line with community standards'. What Minister Reith is saying is that waterside workers—and he does it in a very exaggerated form—earn significantly above the average wage in the community. I do not accept his figures—they tend to vary. Some in this debate have said $70,000, some have said $80,000 and some have said $90,000. The figures that are bandied about vary from government speaker to government speaker.He talks about normalising their employment practices in line with community standards. Well, there are quite a number of monopolies, and a significant number of people in this country are paid well above average weekly earnings. Lawyers have a great monopoly. You cannot practise unless you are a member of a particular lawyers association. So maybe the government should be saying to this monopoly, `Let's support a private sector legal firm that wants to sack their lawyers and reduce their wages to the community standard, and we will help by sending in some security guards and some dogs to keep the lawyers out.' Imagine the outrage if any government attempted to reduce and break the monopoly of lawyers—or, for that matter, executives—to normalise their em ployment practices in line with community standards. There would be absolute outrage if that approach were taken.I want to refer briefly to my home port of Burnie. Nineteen workers have been sacked there, and they are not greedy thugs. I know quite a number of those workers. They are workers with families who make an important contribution to that community. There has been no industrial dispute in Burnie, yet they are among the 1,400 workers who have been sacked. Burnie is a highly efficient port, one of the most efficient in the country. Yet 19 workers and the other 1,380-odd who have been sacked have not engaged in any form of industrial action. The figure that Minister Reith uses—$270,000—is not correct. In the case of the Burnie workers, including superannuation, it will be $46,000. This is just another example of Minister Reith's demonising of a group of Australian workers for his political purposes. (Time expired)16:52:002381Crane, Sen WinstonSenator CRANEUW4WALP10—I am delighted to rise to speak on this motion but, unfortunately, it is the wrong motion to debate in relation to the waterfront. In fact, I share the thoughts of my colleague the Leader of the National Party, Senator Boswell. I say it is a sad, but necessary, day for Australia. I also say, when will they ever learn? We need to look at history in dealing with the waterfront. I certainly take note of what Senator Murray said in terms of the situation with the efficiency and productivity of bulk commodities. The opposite is true about container movements.How did we get there? We got there through a whole series of court actions going back through the 1980s as far as 1976. I am going to highlight some of those actions. It was a long, hard fight. The first one I was involved in was back in 1976 when the MUA placed political bans on Chilean and Indonesian flagships. An action was taken then under the Crimes Act in the Supreme Court of Western Australia. After a request by the then Prime Minister, Malcolm Fraser, and the then President of the ACTU, Bob Hawke—he might have been secretary; I am not sure—they both came to Perth and talked to us about it. We said we would not pull off the legal action, that we would uphold the law. Three days later, we got a phone call from Bob Hawke saying, `If you discontinue your action, we will lift the bans.' That case remains adjourned sine die in the Supreme Court of Western Australia today and there have not been any more bans on Chilean and Indonesian flagships. That took very severe legal action.We then go a little bit further and look at the Mackay sugar case. Once again, it had to be dragged through the courts. We look at the continuous loading case. We got a 64 per cent productivity gain out of that just by rearranging work time, at no cost to anybody, no wages lost. It took months and months dragging the MUA and associated unions through the courts. So when will they ever learn?656FORSHAWSenator Forshaw—I had to drag you lot through the commission for two years to get a national wage increase for shearers.UW4Crane, Sen WinstonSenator CRANE—We look at the situation in Kwinana—a very efficient port. One of the principal reasons for that is that the AWU, not the MUA, controlled the Kwinana work force, as Senator Forshaw would know. After a long drawn-out series of court and industrial actions, once again, that went through the courts. This lot over there will never learn.656FORSHAWSenator Forshaw—That's nonsense.UW4Crane, Sen WinstonSenator CRANE—It is absolutely true. You can go back and document it as long as you like. Senator Sherry mentioned Burnie in Tasmania. Remember the Devonport case? Once again, it was a 45D action, if my memory serves me correctly; once agin it went through the courts and had to get a legal direction to change the situation. They never learnt. They had the opportunity to learn but they never learnt. We can continue to go through these cases. Remember the Geraldton case? Remember when they moved up there they were going to close down farmers' ability to harvest. All the silos were full, CBH could not operate and the port was not operating. Once again, that went through the courts, They never learnt. That is the problem with the argument that is put forward.This is somewhat different. Although it took the AWU in the wide comb case a long time to learn, after that, as Senator Forshaw knows, the award was renegotiated and work practices were changed significantly. But we had to go through the courts with the wide comb case and you know that well. That is the whole sad history of this and union tactics.Many months ago, Mr Reith highlighted that the average container movement—that is all we are talking about here, container movements—was in the order of 18 per hour. He set a target of 25 per hour as a good benchmark for Australia. There was no response whatsoever. When you come down to the bottom line of this particular situation, we find very clearly that Patricks were forced into a situation which I believe we would all prefer not to have had.You talk about freedom of association. How many people can work on the waterfront who are not members of the MUA? We know they disappear very quickly. It is the last of the closed shop bastions in Australia.3L6CONROYSenator Conroy—No, you've got the lawyers.UW4Crane, Sen WinstonSenator CRANE—You don't have to belong to a union to be a lawyer. Why are container movements very important? Because they handle dairy, they handle meat, they handle vegies, they handle perishables, they handle all sorts of commodities and they handle parts and supplies. But most important of all in terms of our performance with container loading is the simple fact that the major shipping companies will not come to Australia. Recently, I had a shipping company which will not come to Australia say to me, `It is safer to send a ship into a war zone. We know some don't come back, but when they go to Australia you have no idea if and when they might come back.' That is one of the reasons why this is necessary.In the time I have left, I want to deal with redundancies. All sorts of things can be quoted, but I will do this quickly: award grade 6, redundancy $107,300; award grade 4, redundancy $60,500; award grade 5, redundancy $65,900. I will not touch on the superannuation points here because I think they are already available. You have made that particular point.I repeat again that the MUA have brought this on themselves. They had the opportunity to take action to fix the waterfront. They were given that opportunity by this government. The simple fact is that Australia could no longer afford to continue with the work practices which exist on our waterfront because they are damaging our ability to trade, damaging our ability to perform and damaging our ability to maximise the returns that should be coming back into this nation.10000ACTING DEPUTY PRESIDENTThe ACTING DEPUTY PRESIDENT (Senator Patterson)—Order! The time for the debate has expired. The question is that the motion moved by Senator Mackay be agreed to.Question resolved in the affirmative.17:00:002382Carr, Sen KimSenator CARRAW5VICALP00—Pursuant to standing order 154, I move:That the resolution relating to the industrial dispute on the waterfront be communicated by message to the House of Representatives.17:01:002382Macdonald, Sen IanSenator IAN MACDONALDYW4QLDLP10—It is the motion moved, or is leave sought to move the motion?10000ACTING DEPUTY PRESIDENTThe ACTING DEPUTY PRESIDENT (Senator Patterson)—Under standing order 154, that motion can be moved and put.YW4Macdonald, Sen IanSenator IAN MACDONALD—I would like to speak to the motion.10000ACTING DEPUTY PRESIDENTThe ACTING DEPUTY PRESIDENT—You can speak to the motion, Senator Macdonald.YW4Macdonald, Sen IanSenator IAN MACDONALD—I just want to discuss with the senators the impact of this particular motion.10000ACTING DEPUTY PRESIDENTThe ACTING DEPUTY PRESIDENT—Senator Macdonald, please resume your seat for a moment. Standing order 154 says:A motion may be moved at any time, without notice, that any resolution of the Senate be communicated by message to the House of Representatives.It does not involve anything else other than the message being communicated.YW4Macdonald, Sen IanSenator IAN MACDONALD—I have decided that I do not want to say anything.Question resolved in the affirmative.YW4MACDONALDSenator Ian Macdonald—Madam Acting Deputy President, let the record show that, on the voices, we voted against both those motions.Committees2383238323832383O'Chee, Sen BillSenator O'CHEEEU4QLDNP10—On behalf of Senator Sandy Macdonald, I present the 16th report of the Standing Committee on Publications.Ordered that the report be adopted.238323832383Crane, Sen WinstonSenator CRANEUW4WALP10—On behalf of the Scrutiny of Bills Committee, I lay on the table Scrutiny of Bills Alert Digest No. 5 of 1998, dated 8 April 1998.Miscellaneous2383238323832383O'Chee, Sen BillSenator O'CHEEEU4QLDNP10—On behalf of Senator Gibson, I present additional information received by the Senate Finance and Public Administration Legislation Committee in response to the 1996-97 and 1997-98 additional estimates hearings, together with the transcript of evidence for estimates hearings in February and March 1998.Committees2383238323832383Brownhill, Sen DavidSenator BROWNHILLRD4NSWNP10—I present the government's response to the report of the Senate Employment, Education and Training References Committee on Austudy, and I seek leave to incorporate the document in Hansard .Leave granted.The document read as follows—INTRODUCTIONAUSTUDYThe AUSTUDY scheme was introduced in 1987 to rationalise Commonwealth assistance to secondary and tertiary students. AUSTUDY subsumed the former Tertiary Education Assistance Scheme (TEAS), the Secondary Allowances Scheme (SAS) and the Adult Secondary Education Assistance Scheme (ASEAS). The Student and Youth Assistance Act 1973 provides the legislative basis for the AUSTUDY scheme and the AUSTUDY Financial Supplement loans scheme. The Department of Employment, Education, Training and Youth Affairs (DEETYA) administers AUSTUDY policy and the scheme is delivered through Centrelink.AUSTUDY provides assistance to eligible secondary and tertiary students. Students must generally have reached 16 years of age and be studying full time in approved courses at schools, TAFE colleges, higher education institutions or certain other approved tertiary institutions within Australia. Students undertaking accredited private sector courses have access to AUSTUDY assistance on the same basis as students attending publicly funded institutions.AUSTUDY is targeted to students most in need of financial support. Because of this, various income and assets tests, including an Actual Means Test, are applied in determining students' eligibility for assistance. AUSTUDY is complemented by other Government programs such as ABSTUDY, which provides financial assistance to Indigenous students, and the Assistance for Isolated Children (AIC) Scheme which provides assistance to families whose children do not have reasonable daily access to an appropriate Government school.During 1996-97, DEETYA Student Assistance Centres (SACs) processed 504 399 applications and 417 597 reassessments; over 1.14 million telephone inquiries were received; and from November 1996 to June 1997 almost 471 500 counter inquiries were handled. In total, SACs dealt with more than 2.9 million client transactions, most of which occurred during a compressed processing season from December to April.The Government has found the recommendations of the Report valuable in its consideration of the future of student assistance. Some changes have already been made to AUSTUDY in response to the Report. Major changes to student assistance will, however, follow with the introduction of the Youth Allowance from 1 July 1998.Youth AllowanceThe majority of the recommendations of the Report focus on eligibility criteria for AUSTUDY, consistency between AUSTUDY and Department of Social Security (DSS) income support arrangements, student debt and debt recovery procedures, and the quality of advice and support given to AUSTUDY applicants. Many of the issues raised in these recommendations were examined in the development of the Youth Allowance. In the 1996-97 Budget, the Government released Youth Allowance—A Community Discussion Paper , which described a broad framework for a proposed new allowance to replace many current income support programs for young people.-2-The Government held consultations with community and welfare groups on issues raised in the discussion paper during September and October 1996. After careful consideration of the outcomes of these consultations the Government announced, on 17 June 1997, details of a Youth Allowance to be introduced from 1 July 1998.The Youth Allowance will remove many of the current financial disincentives faced by young people considering their options for further education and training and will offer a real incentive for young people under the age of 18 to complete year 12 of schooling, or an equivalent qualification, before looking for work. It will further demonstrate the Government's commitment to discourage dependence on income support, and encourage families who can afford to support their children to do so.The Youth Allowance will provide a simpler, more effective system to support young people as they make the transition from education to work and from dependence to independence. In particular, it will recognise the variety of ways in which young people move between job search and study activities, and combine part time work with part time study. The Youth Allowance will bring income support payments under one umbrella, and replace most income support payments for young people 16 to 20 years of age and for full-time students up to 25 years of age, including:. AUSTUDY for full-time secondary and tertiary students;. unemployment payments (Youth Training Allowance and Newstart Allowance);. Sickness Allowance; andmore than minimum family payment for students aged 16-18.Students who are 25 years of age or older will continue to have access to income support under conditions broadly similar to those under the Youth Allowance.The Youth Allowance will provide an opportunity to remove many of the impediments young people find in the current income support system, particularly when they combine workforce participation with study.Centrelink The establishment of a new Commonwealth services delivery agency was announced in the 1996-97 Budget. The main objective of Centrelink is to offer high quality service to customers in the most efficient manner possible. From 1 July 1997, Centrelink delivers all of the student assistance and some of the employment services of DEETYA, together with all the payments and services previously provided by the DSS.Centrelink provides the means for integrating and removing duplication between existing services. The new arrangements also provide the opportunity to re-engineer the delivery of income support payments. This will be especially important in smoothing the transition of customers between different benefits. Service delivery in general will be greatly simplified.GOVERNMENT RESPONSE TO THE RECOMMENDATIONSRecommendation 1That AUSTUDY and JSA rates for eligible recipients aged 21 years or above be brought into line.The Youth Allowance, to be introduced from 1 July 1998, will be available to eligible unemployed young people up to their 21st birthday and to eligible full time students up to their 25th birthday. Unemployed people who have reached 21 years of age will be transferred to the higher Newstart payment while full time students will remain on the Youth Allowance until their 25th birthday.While payment rates for full time students who have reached 21 years of age will not be fully aligned with payments available to unemployed people who have reached the age of 21 years, the Youth Allowance will go some way towards meeting this recommendation.Full time student Youth Allowance recipients, including those who have reached 21 years of age will, for the first time, have access to Rent Assistance, Pharmaceutical Allowance, and Remote Area Allowance on the same terms as Newstart recipients. Full time students will also have access to a higher personal income limit than that available to unemployed customers under Newstart and full time students will have access to student supplement loans which will not be available to unemployed customers.In order to encourage unemployed people to undertake full time education, long term unemployed people who take up full time study after reaching the age of 21 years can transfer to AUSTUDY at special higher rate equal to the rate they were receiving under Newstart. Provisions will be included in the Youth Allowance to allow long term unemployed customers who take up full time study after reaching the age of 21 years to transfer to the Youth Allowance at a rate equal to Newstart.Payments for full time students who commence study after reaching the age of 25 years will be aligned with Youth Allowance payments but without rent assistance. Recommendation 2That DEET undertakes a detailed analysis of the costs and benefits associated with a reduction from 22 to 21 years in the age of entitlement to independent rate of AUSTUDY.The Government does not accept this recommendation.From 1 January 1997, the age of independence for AUSTUDY recipients was raised to 25 years. Raising the age of independence to 25 years restores the age of independence to that which applied at the time Commonwealth student assistance replaced Commonwealth scholarships in 1974, and which remained in place until the end of 1992.Under the Youth Allowance, unless they meet another criterion for independence, such as marriage or workforce participation, full time students will remain subject to parental means testing until their 25th birthday and unemployed young people will be subject to parental means testing until their 21st birthday. The Government believes that the age of independence criterion under AUSTUDY and the Youth Allowance meets community concerns that families with the means to do so should support their children until they achieve financial independence.The proposed Youth Allowance independence criteria will enable students under the age of 25 who have demonstrated their financial independence from their families to be assessed without regard to parental means. Students will be regarded as independent if they:. are married, or have lived in a de facto relationship for two years or more;. have, or have had, a dependent child;. are homeless, a refugee, an orphan or a State ward; or. have a substantial work history over at least 18 months.Recommendation 3That the DEET/DSS Senior Officers' (Income Support) working party examine their agencies' statistics with a view to determining the extent of flow of students from AUSTUDY to DSS benefits and the circumstances under which such transitions occur.Existing systems within DEETYA and DSS do not allow statistics on the flow of students from AUSTUDY to DSS benefits to be readily identified. The transfer of the delivery of DSS benefits and student assistance to Centrelink will provide the opportunity to re-engineer processes for income support payments in a way that will smooth the transition between different benefits. Service delivery in general will be greatly simplified.Under the Youth Allowance, eligible young people will no longer be required to claim student assist ance or unemployment payments when they move between study and job search. They will be paid a common allowance whether they are unemployed, in full time study or combining part time study with job search. The movement of young people between these activities will be monitored.Recommendation 4That the DEET/DSS Senior Officers' (Income Support) working party develop a proposal for the removal of discrepancies relating to rent assistance availability to AUSTUDY recipients. The proposal should take into account the principle that, for people on income support, outlays on rent should account for no more than 30% of their income.Under the Youth Allowance, students under the age of 25 will, for the first time, have access to rent assistance under the same conditions as unemployed young people.Full time students who receive the Youth Allowance before their 25th birthday will be able to continue to receive Youth Allowance rates, including rent assistance, after they turn 25 until the end of their course.Payments for full time students who commence study after reaching the age of 25 years will be aligned with Youth Allowance payments but without rent assistance.Recommendation 5That the DEET/DSS Senior Officers' (Income Support) working group establish a mechanism for the automatic assessment by DSS of AUSTUDY applicants' eligibility for a Health Care Card.The delivery by Centrelink of former DSS services and DEETYA student assistance services (under AUSTUDY and, from 1 July 1998, under the Youth Allowance) will provide a one-stop-shop at which eligible student assistance clients may access the Health Care Card. Centrelink has included an application for the Health Care Card with the 1998 AUSTUDY application form.Recommendation 6That the DEET/DSS Senior Officers' (Income Support) working group develop proposals which would overcome anomalies in income benefits received by eligible supporting parents when a child turns 16 and is eligible for AUSTUDY.The Youth Allowance, to be introduced from 1 July 1998, will be available to eligible unemployed young people up to their 21st birthday and to eligible full time students up to their 25th birthday. Payments for full time students who commence study after reaching the age of 25 years will be aligned with Youth Allowance payments but without rent assistance. Policy anomalies between the Youth Allowance and other DSS benefits will be considered as part of the ongoing review of DSS payments.Recommendation 7That the DEET/DSS Senior Officers' (Income Support) working group identify those policy areas which create impediments to the simple transition of eligible clients between income support schemes, and prepare advice to the respective Ministers aimed at rectifying these matters.The delivery of DSS services and DEETYA student assistance services through Centrelink and the introduction of a common Youth Allowance address this recommendation.Recommendation 8That the inconsistency between DEET and DSS in relation to definition of "full time" and "part time" study be resolved by the DEET/DSS Senior Officers' (Income Support) working group.The Youth Allowance, to be introduced from 1 July 1998, will be available to eligible unemployed young people up to their 21st birthday and to eligible full time students up to their 25th birthday. Unemployed people who have reached 21 years of age will be transferred to the Newstart payment while full time students will remain on the Youth Allowance until their 25th birthday. Payments and activity testing for full time students who commence study after reaching the age of 25 years will be aligned with those of the Youth Allowance (but without rent assistance.)For many young people the introduction of the Youth Allowance will remove the difficulties now experienced as a result of different definitions of "full time" and "part time" study applying to student assistance and unemployment payments. Specifically, the flexible activity test requirements of the Youth Allowance will allow young people to combine study and job search and facilitate transitions between full time and part time study without loss of entitlements.The Government agrees that, in order to remove anomalies for customers who have reached the age of 21 years, a consistent definition of full time study should apply to the Youth Allowance and to Newstart payments. The alignment of definitions of full time and part time study for Newstart payments with those to be adopted for the Youth Allowance is under consideration.Recommendation 9That, provided an eligible student is studying during any given year with a workload at least equivalent to the HECS load of 0.75 (regarded by AUSTUDY as "full-time" study), the eligible student should receive the regular AUSTUDY payment throughout the year, regardless of the pattern of study chosen by the student, or specified by the institution concerned, during that year.The problem of students becoming ineligible for AUSTUDY if their workload falls below full time for part of a year will be addressed by the introduction of the Youth Allowance.Under AUSTUDY, students are required to be studying full time to be eligible for assistance. They must be undertaking a full time workload in each semester and must inform Centrelink if they change enrolment.Full time study will also be an approved activity under the Youth Allowance and full time status will be checked at least once a semester. Students will also be required to inform Centrelink if their workload drops below full time. Under the Youth Allowance, most students will not lose payment for a retrospective period where their workload drops below full time study, providing they notify their changed circumstances. Greater flexibility will encourage customers to advise if their circumstances change so that activity requirements can be adjusted.Recommendation 10That DEET examine the implications of modifying the minimum time rule to provide for AUSTUDY support to students undertaking further undergraduate study where they have already participated in prior formal tertiary study.There will be no set prior study limitations under the more flexible Youth Allowance arrangements. Any study will, however, still need to be assessed as an approved activity.Recommendation 11That (a) all CES offices display signs that oral advice regarding AUSTUDY must be confirmed in writing; and (b) the SAC "Recording of Advice" forms be used by all CES staff when dealing with AUSTUDY clients.This issue will be addressed in the development of student assistance and Youth Allowance customer service procedures within Centrelink. Recommendation 12That training in AUSTUDY for CES officers be substantially upgraded. Student Assistance Centres must be funded to provide, to all CES offices, outreach training services, including training in the use of the STEPS computer system, using the Reference Based Training packages developed for Student Assistance schemes. Such training should also be accessible by DSS officers on request.This issue will be addressed in the development of student assistance and Youth Allowance customer service procedures within Centrelink. Recommendation 13That DEET, in consultation with the Australian Vice-Chancellors' Committee and the relevant student advisers' networks, develop a proposal for the training and support of university student welfare officers as on-campus AUSTUDY advisers.The Government does not accept this recommendation.The delivery of student assistance services became the responsibility of Centrelink from 1 July 1997. While Centrelink does provide AUSTUDY information and assistance to student counsellors, neither Centrelink nor DEETYA can take responsibility for AUSTUDY advice given to students by non-Centrelink and non-DEETYA staff. It is important for the legal protection of student counsellors, DEETYA, and Centrelink that counsellors are not seen as providing advice on behalf of the Department or Centrelink.Centrelink is now responsible for distributing AUSTUDY information to counsellors at tertiary institutions. The AUSTUDY Information Book is available on line to institutions through the Education Network Australia (EdNA), and student counsellors have access to advice from senior staff members of their local Centrelink Student Services (CSS) offices.CSS offices routinely engage in a wide variety of outreach activities including providing on-campus services and briefings to student counsellors.The delivery of student assistance thorough Centrelink and the introduction of the Youth Allowance will simplify procedures and provide enhanced services to students.Recommendation 14That DEET request the Open Learning Technology Corporation to develop a proposal for the computer networking of DEET and schools for administrative purposes, with particular focus on the STEPS processing system and on other requirements for managing information related to AUSTUDY.The Government does not accept this recommendation.The Committee's proposal that Departmental administrative information technology systems be linked with those of schools to facilitate benefits control processes would raise difficult legal issues, especially concerning privacy, quite apart from the information technology problems involved in achieving compatibility among a wide variety of computer systems. Recommendation 15That:(a) DEET publications promoting the AUSTUDY Supplement contain balanced, customer oriented advice about loan conditions and repayments commensurate with Departmental obligations of duty of care; This recommendation is already being met. Published information is aimed at informing students of the existence of Supplement loans and how the scheme works. The focus is on providing relevant information rather than on promoting the scheme.The Supplement Loans—Guide for Applicants, which all eligible students receive, provides detailed information about the scheme including the conditions attached to the loans and the repayment arrangements. Material in this, and other DEETYA/Centrelink publications that include information on Supplement loans, is reviewed and updated as necessary each year to take account of student inquiries over the previous 12 months. This is important in relation both to DEETYA's duty of care obligations and to the maintenance of the credibility of the Supplement loans scheme.(b) that the National Union of Students, in consultation with the Federal Bureau of Consumer Affairs and relevant financial counselling associations, develop a publicity strategy and information package for the purpose of assisting students to make sound decisions concerning the taking up of AUSTUDY Supplement loans.This is primarily a matter for the National Union of Students to consider. The Government would, however, be concerned about any duplication of information material and the consequent risk of misleading advice.Recommendation 16That a "cooling off" period of ten days be introduced to the Supplementary loans scheme.The Government accepts this recommendation.There is no prescribed cooling off period for AUSTUDY Supplement loans. A student who has applied to the Commonwealth Bank of Australia (CBA) for a Supplement loan and has not received any payments may, however, withdraw his or her application if the student advises the CBA in writing before the due date of the first payment.The Government proposes to amend the Student and Youth Assistance Act 1973 to introduce a 14 day cooling off period for all students who apply for a Supplement loan. Subject to the passage of the legislation the cooling off period will apply to Supplement loans taken out after 1 January 1999. Recommendation 17That, where a student elects to take up an AUSTUDY Supplement loan, up to 50% of that loan- but not exceeding $1500—may be taken as a lump sum.The Government does not accept this recommendation.-9-AUSTUDY living allowance entitlements can be traded in for twice the amount of AUSTUDY Supplement loan—that is, $2 of loan (up to a maximum of $7,000) for each $1 of entitlement traded in. Supplement loans are paid fortnightly together with any residual AUSTUDY that the student is eligible to receive.Many students already receive a lump sum when they take out a Supplement loan. Under current arrangements, provided full year/first semester students apply for a Supplement loan before 31 May, their Supplement payments are back dated to the start of their grant eligibility period. This means that they receive a lump sum payment for the period up to when they were granted the loan. Students applying in the second semester have their Supplement loan back dated to 1 July if they apply before 30 September.. For example, a student studying for the full year who applies for a $7,000 Supplement loan at the end of March would receive an initial payment of approximately $1,000 if the grant eligibility period commenced on 1 January. From then on, the Supplement payment would be approximately $268 a fortnight for the rest of the year.Students who take out Supplement loans have their fortnightly AUSTUDY payments reduced by the amount traded in for their loan payments. If lump sum Supplement loan advances were available, some students might withdraw from study (or otherwise become ineligible for AUSTUDY) before they had traded in sufficient AUSTUDY to cover the loan advance. This would contravene the $1 for $2 trade in requirement, and there is currently no legislative provision to recover Supplement loan payments within five years of when the loan was taken out unless the student had obtained the loan by false or misleading information.All Youth Allowance recipients, including full time students, will have access to a $500 loan advance of their Youth Allowance entitlement under similar conditions to those currently applying to loan advances of other DSS payments (that is, the loan is recovered by reduced fortnightly payments over the next six months.)Recommendation 18That the Government examine the possibility of resourcing welfare rights centres, or similar, to carry out an advocacy role with respect to AUSTUDY. Such advocacy would not only be a direct service to clients, but provide feedback to DEET on the effectiveness of, and improvements to, the AUSTUDY scheme.The Government examined this issue in developing the 1997 Budget but did not consider it to be a priority for funding in the current context.Recommendation 19That DEET and the AVCC Standing Committee on Student and Scholarship matters develop jointly a mechanism for the enhancement of advice to Student Assistance Centres concerning enrolment variations of students.The AUSTUDY application form and other information products clearly state that students must notify DEETYA (now Centrelink) of changes in enrolment which may affect eligibility for AUSTUDY. Enrolment advice provided to the Department (now Centrelink) by educational institutions is used to check compliance and does not affect students' responsibility to provide enrolment details.The Government would support measures to improve administration of enrolment details provided a clear legal position is maintained on debts.Under the Youth Allowance students will also be required to inform Centrelink if their workload drops below full time. Most students will not lose payment for a retrospective period where their workload drops below full time study, providing they notify their changed circumstances so that their activity requirements can be adjusted. The greater flexibility of activity testing available under the Youth Allowance will encourage students to advise changes of circumstances promptly.Recommendation 20That DEET explain clearly in all publications regarding the AUSTUDY scheme, and in all correspondence related to debt recovery, (a) the mechanisms available to the Department for recovering debts, including the capacity to garnishee bank accounts; and (b) the rights and appeal mechanisms available to AUSTUDY recipients in these circumstances.DEETYA (now Centrelink) provides detailed information about the scheme, clearly setting out that it is the student's responsibility to provide information on any change in circumstances which might lead to overpayments. The material in DEETYA/Centrelink publications is reviewed and updated as necessary each year to take account of student inquiries and concerns over the previous 12 months. DEETYA/Centrelink continues to ensure that letters about debt recovery decisions inform students of available appeal mechanisms and the debt recovery powers which can be exercised under the Student and Youth Assistance Act 1973 . Letters are reviewed regularly to ensure that they are clear and direct, but not intimidatory, and reflect current policy.Recommendation 21That, with respect to AUSTUDY overpayments involving secondary school students, DEET ensure that further contact is made with the school prior to the implementation of withholdings for debt recovery purposes.The Government does not accept this recommendation.Under current arrangements if there is any doubt about the integrity of the attendance data provided by a school, Centrelink contacts the school for confirmation prior to action. In the rare cases where a student's entitlement is suspended on the basis of incorrect information provided by schools, the entitlement is re-instated promptly with full back pay. In these cases discussions are held with the school to improve data quality in future reports.Implementation of this recommendation could lead Centrelink to continue to pay clients who had no entitlement while further checks were made with schools, thereby creating substantial overpayments. This would defeat the purpose of the enrolment check. The proposed course of action will only serve to exacerbate the problem of secondary students incurring overpayments, not reduce them.Recommendation 22That, without prejudice to beneficiaries' existing rights of review and appeal;(a) any debts arising from overpayment of AUSTUDY benefits to tertiary students should be recovered at a rate no more than 14% from ongoing entitlements, or otherwise be added to their HECS debt for recovery through the normal tax arrangements applying to HECS; and(b) recovery of AUSTUDY overpayments to secondary students should involve withholdings of no more than 14% of ongoing entitlements, or otherwise a negotiated repayment rate over a period of at least two years from the date of notification of overpayment, unless the debtor elects to repay the debt more quickly.Existing DSS debt recovery procedures, which will be applied to the Youth Allowance, are consistent with the recommendation that debts should be recovered by withholdings of up to 14% of basic entitlement.The Government does not, however, accept the recommendation that debts arising from overpay ments of income support to tertiary students be added to HECS liabilities for recovery through tax arrangements for he following reasons:. Debts arising from overpayments of income support are of quite a different nature to deferred HECS liabilities. There is no flexibility in the allocation of HECS amounts which are repaid. All repayments are returned to the higher education sector through the Higher Education Trust Fund.. Not all tertiary students will have an unpaid HECS liability to which an overpayment debt could be added. Tertiary students at TAFE institutions do not pay HECS and many higher education students pay their HECS "up front".. Because of the income contingent nature of HECS repayments, some individuals would never repay their overpayments if overpayments were added to outstanding HECS debts.. If overpayment debts were added to outstanding HECS debts, students would be able to access a 15 per cent bonus on the voluntary repayment of overpayment debts.Recommendation 23That, in those special cases where current year estimates are used for the purposes of assessing AUSTUDY benefits, the Government expand regulations to allow students to use estimates of parental and spousal income for the financial year commencing in the second half of the year of study.The Government does not accept this recommendation.Under the Youth Allowance student personal and spouse income will be assessed according to the DSS current fortnightly income test.The Youth Allowance parental income test will be based on the current AUSTUDY parental income test. As with AUSTUDY, the parental income test will be based on the income for the financial year ending in the year before the year of claim. As with AUSTUDY, the Youth Allowance parental income test will make provision for assessments to be made on estimates of income for the financial year ending in the year of claim in cases where parental income is expected by the parents to have fallen from the previous financial year.Recommendation 24That, with respect to the reconciliation of estimated with actual incomes for assessment of benefit purposes, the Government introduce a buffer of 10% whereby no overpayment is raised if the actual income is above or within 10% of, the estimated income.The Government does not accept this recommendation. The Youth Allowance parental income test will be based on the AUSTUDY parental income test. This includes the reassessment of entitlements when actual parental income is above, or below, estimated parental income without the application of a buffer area before overpayments are raised or additional payments made.The need for students to estimate personal income will be greatly reduced under the proposed Youth Allowance. Entitlement will be assessed fortnightly and payable in arrears, as opposed to AUSTUDY where an annual entitlement is assessed on an estimate of student income for the period in a financial year for which a student is eligible. Under the Youth Allowance, students with earnings close to or above the proposed income free of $230 per fortnight will be required to report regularly to avoid overpayments.239023902390Brownhill, Sen DavidSenator BROWNHILLRD4NSWNP10—I present the government's response to the report of the Joint Standing Committee on Foreign Affairs, Defence and Trade entitled Sharpening the focus: Report of a seminar on the Simons Committee Report , and I seek leave to incorporate the document in Hansard .Leave granted.The document read as follows—On 2 May 1997, the Minister for Foreign Affairs, the Hon Alexander Downer MP, released the Report of the Committee to Review the Australian Overseas Aid Program (the Simons Report). At this time the Minister announced a period of public comment on the report, to ensure that community reactions were taken into account in the Government's response. As part of this process, the Minister requested that the JSCFADT hold a seminar on the Simons Report. This seminar was subsequently held on 11 July 1997, and in October 1997 the Committee released a report "Sharpening the Focus: Report on a Seminar on the Simons Committee Report".The Government tabled its formal response to the 79 recommendations of the Simons Report on 18 November 1997. At the same time, the Minister released a statement of new directions for the aid program entitled "Better Aid for a Better Future".The Government's response to the 15 recommendations contained in the JSCFADT report is provided below, and should be read in association with the Minister's statement. Recommendation 1: That the Australian Government determine an ODA/GNP target, and establish a timetable for meeting the revised target by 2002.NOT ACCEPTED. The Government will continue to recognise the UN target of 0.7 per cent of GNP as an indicative target. The Government will continue to consider aid levels in the annual budget context.Recommendation 2: That the Australian Government use the criteria of relative need, effectiveness, efficiency and other donor involvement, as well as geographic factors, in determining the development assistance program.ACCEPTED. The Government will continue to take into account a range of factors, including these, in determining the focus of the Australian overseas aid program.Recommendation 3: That the Australian Government introduce a new soft loans scheme once it has evaluated the cost effectiveness of such a scheme against other delivery mechanisms.UNDER CONSIDERATION. The Government has no in-principle objection to aid being provided in the form of soft loans, but not at the expense of other higher priority aid activities. It will therefore consider the introduction of soft loans in the budget context.Recommendation 4: That AusAID institute new record keeping procedures to allow it to identify more accurately the extent of tying in the Australian aid program. AusAID should report on its efforts to do so and the extent of tying in its next annual report.ACCEPTED. AusAID has already moved to improve its capacity to identify accurately the level of tying in the Australian aid program. AusAID will report on the level of tying in the next annual report.Recommendation 5: That AusAID and the NGO community review the range of current consultative mechanisms, disbanding those that are no longer effective, and examining ways in which NGOs' experiences might enhance policy considerations within the aid program. AusAID should report in its next annual report on progress in this area.ACCEPTED. As part of the preparation of a statement of policy principles for the Agency's cooperation with NGOs, AusAID will work with NGOs to review arrangements for consulting with the NGO community, and will report on these arrangements in the next annual report.Recommendation 6: That AusAID include in its next annual report advice on progress with an independent study of the relative cost-effectiveness of NGOs as a channel for development cooperation.NOT ACCEPTED. The Government notes that a number of detailed studies have been undertaken recently in regard to NGOs. The Government believes that NGOs play a valuable and cost-effective role in the Australian aid program. The Government does not feel that a study of the relative cost-effectiveness of NGOs is a priority at this stage.Recommendation 7: That the further extension of cost-sharing principles be considered by AusAID on a case by case basis.NOT ACCEPTED. As indicated in the Government's response to the recommendations of the Simons Committee, the Government agrees that NGOs already make a significant contribution to the costs of projects supported through country program windows, and therefore will not extend cost-sharing to these activities. To ensure that Government funds are channelled through NGOs that have substantial community support and are of sufficient size and professionalism to deliver aid programs overseas, a rigorous accreditation process has recently been introduced. As part of the accreditation requirements, NGOs seeking funding from AusAID are required to have a recognised development expenditure of at least $30,000 annually. The appropriateness of this level will be kept under review, in consultation with the NGO community.Recommendation 8: That AusAID and the NGO community examine ways in which together they might improve the general community's understanding of development issues.UNDER CONSIDERATION. This issue will be considered following the outcomes of the response to recommendation 9 below.Recommendation 9: That AusAID, in conjunction with ACFOA, examine ways in which coordinated research into public support for development assistance might be implemented, as recommended by the Simons Report in Recommendation 19.3.ACCEPTED.Recommendation 10: That AusAID report as part of its next annual report on progress in improving its management information system.ACCEPTED.Recommendation 11: That AusAID investigate the cost involved in any proposed decentralisation, and report on this matter in its next annual report.ACCEPTED. This and other management issues are the subject of a management and organisational review currently under way. Decisions on additional resources will need to consider competing priorities for limited resources and budget out comes. The outcomes of the management and organisational review will be reported in the next annual report.Recommendation 12: That the Australian Government review the budget process in regard to the allocation for development assistance, and consider introducing a three-year rolling program approach or a trust fund arrangement.NOT ACCEPTED. The level of aid program expenditure will continue to be determined on an annual basis in the budget process.Recommendation 13: That the Australian Government establish an Advisory Board to assist AusAID management in the direction of the development assistance program.ACCEPTED IN PRINCIPLE. The Government agrees that a small expert advisory committee be established to provide advice to the Minister for Foreign Affairs on aid and development issues.Recommendation 14: That the Australian Government continue to work in international forums for greater policy coherence and coordination among donor countries.ACCEPTED.Recommendation 15: That AusAID undertake an evaluation of the relative merits of aid delivery using bilateral or multilateral channels, and report on its progress in its next annual report.NOT ACCEPTED. All forms of aid will continue to be subject to a regular program of evaluation. The respective levels of bilateral and multilateral aid will continue to be determined by the Minister in the annual budget context, taking into account a range of factors.2391239117:04:002391Stott Despoja, Sen NatashaSenator STOTT DESPOJA3I6SAAD00—I seek leave to make a short statement in relation to the report on Austudy that has been tabled.Leave granted.3I6Stott Despoja, Sen NatashaSenator STOTT DESPOJA—I wish to acknowledge, finally, the belated tabling of a government response to a report conducted in June 1995 by the Senate Employment, Education and Training References Committee. The report relates to the student financial assistance scheme, Austudy, and it has taken until now, for whatever reason, to actually get a government response to the recommendations contained in that report.I would like the Senate to note that there were a number of very positive recommendations contained in that report, which, I understand, was quite a comprehensive deliberation over student financial assistance, in particular the operations of the Austudy scheme. The report follows on the heels of a number of inquiries by government as well as independent sources into student financial assistance. In 1991, we had the Price report in the House of Representatives and, in 1992, the so-called Chapman report, which ended up advocating a system of loans.All of those reports canvassed important issues such as the disparity between unemployment benefits and student assistance. They also talked about difficulties between departments—Social Security and Employment, Education and Training. They also canvassed the issue of the age at which students were entitled to some form of assistance. I wish to draw the Senate's attention to recommendation No. 2 in that particular 1995 report. It states:That DEET undertakes a detailed analysis of the costs and benefits associated with a reduction from 22 to 21 years in the age of entitlement to independent rate of AUSTUDY.Needless to say, the government's response is that it does not accept this recommendation. It is worth pointing out, given the recent deliberations over the common youth allowance and other legislative changes to not only education funding but also student assistance in particular, that the department, or in this case the government, not only reduced the age at which students were eligible for the independent rate of assistance—that is, from 22 to 21 in that circumstance—but also made a very different, quite contrary, recommendation which was passed by the Senate last year, and that was to increase the age at which students were entitled to receive Austudy. That was increased to the age of 25.That age has been replicated, for the purposes of the current framework, for assistance to both students and young unemployed people; that is, the ages of independence are completely concocted and they are a sham. Under the common youth allowance, students cannot access financial assistance until the age of 25. They are considered financially dependent upon their parents well into adulthood. For a young unemployed person, the age is 21.Once again, despite recommendations to the contrary in reports such as this and in previous reports on student assistance, we see the age of independence increased to a level that has no other real legislative framework. There is a moral obligation—there should not be a legal obligation—on parents to support their children until the age of 25. In fact, I should not refer to them as children, given that, at the age of 25, they are certainly adults.There are a number of other issues contained in this report. One of the recommendations relates to rent assistance. Because it is nice to commend something this government has done for students and young people, I acknowledge the extension, for the first time, of rent assistance to students as a result of the common youth allowance measures. But unfortunately it comes with a policy framework that makes eligibility for rent assistance quite restricted, quite narrow. It is also accompanied by a one-third cut in rent assistance for those students living in shared accommodation. So, once again, a number of positive recommendations have been overlooked by this government.I would like to place on record, especially in the context of the debate that took place in this place yesterday, the department's organisation of a media strategy document to target those of us who continue to scrutinise and expose the negative aspects of government legislation in relation to young people and students. I move:That the Senate take note of the document.17:09:002392Carr, Sen KimSenator CARRAW5VICALP00—I do not wish to speak for very long, other than to point out that this is a government response to a report prepared by the Senate Employment, Education and Training Committee in June 1995. It takes a long time to get a response from this government—an extraordinarily long time. I note, yet again, the number of recommendations that this government have not accepted. It seems to take them year after year to come up with a proposition. They do not like hearing what they have been advised by a Senate committee. It would have been much simpler if, when they got the response, they had simply said no, and dealt with it in a more direct and honest way. This government try year after year to get rid of reports. They hope they will be buried and that issues will go away in the manner that we have seen with so many other reports.I postponed a motion today, the substance of which was on this very question: the failure of this government to respond to the committees of this parliament and, in particular, its failure to respond to estimates committees with answers to questions on matters of great importance to the people of this country—in this case, student assistance. We see this in every division of the Department of Employment, Education, Training and Youth Affairs. We see it in relation to every aspect of this minister, Dr Kemp, in regard to his failure to adequately respond and the trend to treat this parliament in a contemptuous manner.We have been promised for days that we will get responses to various reports of this committee. In the case of the report Beyond Cinderella: a learning society, which was presented in April 1997, we still have not had a response. There is still no response to the report entitled Not a level playground: the private and commercial funding of government schools, presented in June 1997. The report entitled Childhood matters, the report of the inquiry into early childhood education, presented in July 1996, has been sent off by this government to another department for response. We will never see the end of that matter. The report will disappear into the great vortex of some other department until the government can find somewhere else to pigeonhole it. Maybe it will be forgotten. Maybe we will not remember. I assure the government and I assure this minister that I will not forget. I will do my very best to assist them, to remind them of their obligations to this parliament and the people of this country to respond in a proper manner.When it comes down to basic issues like answering questions to this parliament, this government no longer has the capacity. This is the real question: the government no longer have the capacity to answer questions. The government do not know how to do it because they have gutted the departments. They have sacked so many people in the Public Service that they cannot even answer simple questions, simple propositions. They have to get in another consultant to help them out with basic requirements. I noticed today that, once again, KPMG has had another good run. I suppose we will get a KPMG report assessing this committee. Maybe they will come up with a proposal that will demonstrate to this government that, `We can't really accept their recommendations anyway.' But it will probably cost a couple of hundred thousand to reach that conclusion.It is time that the government faced up to its obligations. It is appropriate that it respond adequately to the reports of this parliament, to the committees of this parliament. It is just not good enough. This response to Austudy is another example. It is just not good enough.Question resolved in the affirmative.239323932393Brownhill, Sen DavidSenator BROWNHILLRD4NSWNP10—I present the government's response to the report of the Joint Standing Committee on Electoral Matters on the 1996 Federal Election, and I seek leave to incorporate the document in Hansard .Leave granted.The document read as follows—Electoral IntegrityRecommendation 1That the AEC prepare a comprehensive implementation plan on the Committee's proposed measures to improve the integrity of the enrolment and voting process, and report back to the Committee by the end of 1997.Response1. Supported. The Government notes the opposition of the ALP members of the JSCEM to this recommendation and Recommendations 2, 3, 4, and 6. However, it supports these recommendations for the same reason put forward by the majority of the JSCEM, ie. that it is unacceptable that the most fundamental transaction between a citizen and the government, that is, the act of choosing the government at a democratic election, is subject to a far lower level of security than such lesser transactions as opening a bank account, applying for a passport, applying for a driver's licence or registering for social security benefits to name but a few.2. The AEC has submitted the implementation plan to the JSCEM.Recommendation 2That as part of the implementation plan recommended above, the AEC nominate a prescribed class of persons eligible to complete the witnessing portion of the enrolment form if upgraded into a proof of identity declaration. The upgraded enrolment form should specify that a witness must be on the Commonwealth electoral roll (rather than merely eligible to be enrolled). Adequate provision should be made for identifiable groups of people who will face unusual difficulties in finding a witness.Response3. Supported. The Government believes that appropriate amendments should be made to the Commonwealth Electoral Act 1918 . The process involved in implementing Recommendations 2, 3 and 52 are interlinked. The combined cost is estimated at $4,862,000 in the first year and $3,940,000 in each out year.Recommendation 3That the Electoral Act be amended to provide that an applicant for enrolment must produce at least one original item of documentary proof of identity, where such information has not been provided previously (that is, all enrolment transactions initially and new enrolments thereafter). Acceptable documents might include photographic drivers' licences, Birth Certificates or extracts, Social Security papers (such as notice or advice of a pension) or Veterans' Cards, Citizenship Certificates, passports, Medicare Cards, or a written reference for a limited range of clients unable to produce the above documentation.Response4. Supported. However, the Government believes that the amendment should only apply to new enrolments. Recommendation 2 is relevant in relation to costs.Recommendation 4That in co-operation with relevant Commonwealth, State and Territory departments and agencies, the AEC conduct a study identifying costs, benefits, methods of implementation, and requirements for legislative amendment of the following options for the expanded matching of enrolment data: (a) manual provision of data in response to requests for information relating to individual enrolments;(b) bulk comparison of data held by the AEC and other departments and agencies;(c) on-line connections between the AEC's Roll Management System (RMANS) and the computer systems of other government departments and agencies, enabling validation of data as an enrolment form is entered onto the system; and(d) such other options as may appear as a result of the study to appear viable.Response5. Supported. The Government considers that the integrity of enrolment and voting are fundamental to democracy and as such the AEC should be afforded the facilities to use the data held in other government controlled databases to check the accuracy of the electoral Roll.Recommendation 5That the Electoral Act be amended to make clear that claims for enrolment from persons who state they have achieved citizenship through naturalisation under the Australian Citizenship Act 1948, but who do not provide a date of naturalisation or citizenship number, will not be accepted until such information has been verified by the AEC (see also Recommendation 4 on cross-checking of electoral data against external databases).Response6. Supported. The cost estimate of implementing this recommendation is $280,000 in the first year and $140,000 in each out year. Recommendation 2 is also relevant in relation to costs.Recommendation 6That section 155 of the Electoral Act be amended to provide that for new enrolments, the rolls for an election close on the day the writ is issued, and for existing electors updating address details, the rolls for an election close at 6.00 pm on the third day after the issue of the writ.Response7. Supported. Following the introduction of identification for new enrollees (Recommendation 3), the administrative implications during the final week of enrolment, and the volume of new enrolments, it is evident that the AEC would not be able to process applications whilst still ensuring that the necessary checks are completed in order to maintain the integrity of the electoral Roll. Existing electors wishing to change their address details may still do so up to 8.00 pm on the third working day after the writ is issued. New enrollees are required under the CEA to enrol within one month of attaining eligibility. Recommendation 7That as part of the implementation plan referred to at Recommendation 1, the AEC prepare a detailed proposal for the reintroduction of subdivisional voting for future Federal elections. The proposal should consider a corresponding public awareness campaign (so that people are aware they may be disenfranchised if they fail to advise the AEC of a change of address across a subdivisional boundary, even when remaining within the same division.)Response8. Supported in principle. The Government supports the conducting of an investigation into the reintroduction of subdivisional voting. However, the Government believes the JSCEM should conduct a more detailed investigation into the positive and negative aspects of the reintroduction of subdivisional voting.Recommendation 8That in relation to multiple voting, the word "wilfully" be deleted from section 339(1)(j) of the Electoral Act.Response9. Supported. The amendment is included in the Electoral and Referendum Amendment Bill 1997.Recommendation 9That electoral rolls for a division or subdivision again be made available for inspection in local libraries and Post Offices.Response10. Not supported. The Australian Electoral Commission to examine the cost and feasibility of placing electoral rolls on the Internet where they can be readily updated.Recommendation 10Further to Recommendation 6, that section 118(5) of the Electoral Act be amended to provide that the period during which a Divisional Returning Officer cannot remove a name from the roll following objection action commences at the close of rolls.Response11. Supported. The amendment is included in the Electoral and Referendum Amendment Bill 1997.Recommendation 11That a) sections 95, 99 and 101 of the Electoral Act be amended so that electors are required to re-enrol within one month of changing address anywhere in Australia and b) the AEC be empowered to negotiate with utilities and local government so that documents sent out by those bodies, to persons who have changed address, include reminders to change enrolment details.Response12. Supported. Preferential and Compulsory VotingRecommendation 12That section 245 of the Electoral Act and section 45 of the Referendum Act, and related provisions providing for compulsory voting at Federal elections and referenda, be repealed. In the interests of effective management of the electoral system and maintaining accurate records of turnout, compulsory enrolment should be retained.Response13. Not supported. The Government does not believe that voluntary voting should be considered at this time.Recommendation 13That section 270(2), 329(3) and 329A of the Electoral Act be repealed.Response14. Supported. The amendment is included in the Electoral and Referendum Amendment Bill 1997.Recommendation 14That section 240 of the Electoral Act, which provides for full preferential voting at House of Representatives elections, be amended to include the words "consecutive numbers, without the repetition of any number".Response15. Supported. The amendment is included in the Electoral and Referendum Amendment Bill 1997.Recommendation 15That if Recommendation 13 is accepted, at future Federal elections the AEC monitor how many informal votes would have been accepted as formal had section 270(2) of the Electoral Act remained in force.Response16. Not supported. The Government does not believe that implementing this recommendation is necessary, beyond what the AEC would normally undertake with regard to its function under section 7(1)(e) of the Commonwealth Electoral Act 1918 .Recommendation 16That before the next election, the government seek advice on the constitutional validity of section 272(2) and 272(3) of the Electoral Act, which allow a Senate group to lodge multiple voting tickets.Response17. Noted. The AEC has advised that it has advice indicating the relevant sections are constitutionally valid.Recommendation 17That the AEC revise its procedures to ensure compliance with section 216 of the Electoral Act, which requires that Senate group voting tickets be "prominently displayed" on posters at polling booths. Such information should be made available to electors who request it before polling day.Response18. Not supported. The Government opposes this recommendation as section 216 of the Commonwealth Electoral Act 1918 adequately outlines the procedures to be followed.Enrolment and Voting by Certain GroupsRecommendation 18That the Electoral Act be amended to allow the reinstatement of provisional votes where an elector has moved between subdivisions in the Northern Territory or Kalgoorlie, but has remained within the relevant division.Response19. Supported in principle. The amendment should reflect that the provisional votes be admitted, but that these voters should be required to re-enrol in the normal way.Recommendation 19That following the next Federal election the AEC conduct a review of its service delivery to Aboriginal and Torres Strait Islander electors, in the context of the abolition of the ATSIEIS, and report back to the Parliament.Response20. Not supported. The Government also notes the call by the ALP for the reintroduction of the ATSIEIS program. However, the Government believes that the measures implemented with regard to the service provided by the AEC to Aboriginal and Torres Strait Islander electors following the abolition of ATSIEIS provide a sufficient level of service.Recommendation 20That in relation to assisted voting, section 234(1) of the Electoral Act be repealed, and section 234(2) be amended to allow any polling official (rather than a "presiding officer") to assist a voter.Response21. Supported. However, there should be no amendment to section 234(2). The Government believes that the only person able to complete the ballot paper, other than the eligible voter, should be the presiding officer.Recommendation 21That the ATSIC Act be amended to provide that ATSIC elections may not be held in the period between the close of nominations and the close of polling for a Federal, State or Territory election.Response22. Supported. The ATSIC Regional Council election period should not commence while there is a general federal election or referendum writ in force. Further, if a general federal election or referendum writ is issued during an ATSIC Regional Council election period, the ATSIC election period should be suspended from the issue of the writ, and resumed at a suitable time after the federal election or referendum.Recommendation 22That the Electoral Act be amended to allow Australians resident overseas for the purposes of career or employment to remain enrolled, or to enrol after departing Australia, for a subdivision under similar criteria to those provided for itinerant electors in section 96(2A) of the Act. The qualifying period of three years or less under section 94 of the Act should be extended to six years (with the retention of the capacity, under section 94(8) and 94(9), for electors to apply for further extensions on a year-by-year basis.)Response23. Supported. The amendment is included in the Electoral and Referendum Amendment Bill 1997.Recommendation 23That section 193(2) of the Electoral Act be amended to replace any reference to the "Queen's Dominions" with "Commonwealth".Response24. Supported.Recommendation 24That section 93(8)(b) of the Electoral Act be amended to provide that a person serving a prison sentence for any offence against the law of the Commonwealth, or of a State or Territory, is not entitled to enrol or vote at Federal elections.Response25. Supported. The Government notes the ALP's dissension to this recommendation. The Government however recognises that the imposition of a prison term limits an individual's access to certain rights and privileges. The right to vote is considered by the Government to be one of the rights that should be foregone by prisoners.Recommendation 25That the AEC improve education for staff in hospitals and nursing homes (and other such institutions likely to be appointed as polling places) to ensure that patients are not deprived of the right to vote, and that the rights of party scrutineers are understood and applied consistently.Response26. Supported. Recommendation 26That section 226(2A) of the Electoral Act be amended so that during the conduct of mobile polling at special hospitals, Electoral Visitors are allowed to advise voters that how-to-vote material is available.Response27. Supported. The amendment is included in the Electoral and Referendum Amendment Bill 1997.Recommendation 27That a drafting error in section 226(4)(a) of the Electoral Act be corrected, by replacing the reference therein to section 219 of the Act ("participation by candidates in the conduct of an election") with a reference to section 348 ("control of behaviour at polling booths etc").Response28. Supported. The amendment is included in the Electoral and Referendum Amendment Bill 1997.Recommendation 28That the Electoral Act be amended to enable presiding officers to take ballot papers immediately outside a polling place to electors who, because of physical incapacity, cannot enter the polling place. Scrutineers should be given the opportunity to observe this process.Response29. Supported. The amendment is included in the Electoral and Referendum Amendment Bill 1997.Enrolment and Voting: Other IssuesRecommendation 29That the AEC, in its pre-election advertising, emphasise that pre-poll and postal voting is only available to those electors who will be unable to cast an ordinary vote on polling day.Response30. Not supported. The Government believes that a significant amount of pre-election advertising is done by political parties with particular emphasis on postal voting, and that a further campaign conducted by the AEC could not be fiscally justified.Recommendation 30That the Electoral Act and the Referendum Act be amended to make clear that a postal vote application form sent to an elector must be the official AEC form or an exact replica, and must not be incorporated into another document with material issued by a body other than the AEC.Response31. Not supported. The amendment should provide that the approved postal vote application may be incorporated into another document with material issued by a body or person other than the AEC, such as a political party or candidate. However, the postal vote application must be in the approved form. An amendment has been moved to the Electoral and Referendum Amendment Bill 1997.Recommendation 31That the postal voting provisions of the Electoral Act and the Referendum Act be amended to enable double enveloping, by deleting the requirement for the declaration certificate and the return address of the Divisional Returning Officer to be printed on the envelope into which the postal ballot papers are placed.Response32. Supported. The amendment is included in the Electoral and Referendum Amendment Bill 1997.Recommendation 32That paragraph 7 of Schedule 3 of the Electoral Act and paragraph 7 of Schedule 4 of the Referendum Act concerning the postmarking of postal vote envelopes be repealed, so that the date of the witness's signature is instead used to determine if a postal vote was cast before the close of polling. The witnessing portion of the postal vote envelope should specify all the elector's details being attested to, and should make clear that it is an offence for a witness to make a false declaration.Response33. Supported. However, the Government believes that this provision should only be used in the event of the postmark being illegible or non-existent.Recommendation 33That the Electoral Act be amended to permit candidates to receive on request, an electronic copy of the marked roll of those electors who lodged postal votes at the relevant election.Response34. Not supported. The Government believes that existing arrangements with regard to access to the marked roll are adequate.Recommendation 34That the Electoral Commissioner be provided with a discretion in the Electoral Act with regard to the layout and formatting of the Senate ballot paper, to enable cost-effective use of standard paper stocks and printing technologies. Any new format should not compromise the legibility of the ballot paper.Response35. Not supported. The Government believes that the AEC does not need further discretion with regard to the ballot paper. The ballot paper should have a consistent format, with the size of the paper being amended to incorporate all the candidates names and ensuring that the names are legible. There is no provision in the Commonwealth Electoral Act 1918 restricting the size of the ballot paper.Recommendation 35That section 273 of the Electoral Act be amended so as to permit the Senate scrutiny to be carried out by either the current manual processes or by a computer process based on the same principles as the manual count.Response36. Supported. The amendment is included in the Electoral and Referendum Amendment Bill 1997.Recommendation 36That the Electoral Act be amended so that, where on the basis of first preferences votes the exclusion of all but two candidates for a House of Representatives division is inevitable, the declaration of the poll proceeds based on the result of the two-candidate preferred count.Response37. Supported. However, the current requirement to conduct a full distribution of preferences, if only for statistical purposes rather than determining who is elected, should remain. The amendment is included in the Electoral and Referendum Amendment Bill 1997.Recommendation 37That section 266 of the Electoral Act concerning the preliminary scrutiny of declaration votes be amended to provide that the preliminary scrutiny may begin on the Monday before polling day.Response38. Supported. The Government supports this recommendation provided that it only applies to the scrutiny of the declaration, not the votes themselves, and that no envelope containing votes is opened until after the close of the poll. In addition, the secondary check on rejected declarations will not occur until after the close of the poll.Recommendation 38That sections 153(2)(b) and 154(4)(b) of the Electoral Act, and section 14(2) of the Referendum Act, be amended to require the advertising of election and referendum writs in only one newspaper circulating in a State or Territory where there are not two newspapers in wide circulation.Response39. Supported. The amendment is included in the Electoral and Referendum Amendment Bill 1997.Nomination of Candidates and Registration of Political PartiesRecommendation 39That at an appropriate time, such as in conjunction with the next Federal election, a referendum be held on a) applying the "office of profit" disqualification in section 44(iv) from the start of an MP's term, rather than from the time of nomination, and b) deleting section 44(i) on "foreign allegiance" and otherwise amending the Constitution to make Australian citizenship a necessary qualification for membership of the Parliament.Response40. Noted. The Attorney-General is in the process of progressing a recommendation from the Standing Committee on Legal and Constitutional Affairs.Recommendation 40That section 170(3) of the Electoral Act be amended to increase the deposit for nomination from $250 to $350 for the House of Representatives, and from $500 to $700 for the Senate.Response41. Supported. The amendment is included in the Electoral and Referendum Amendment Bill 1997.Recommendation 41That section 166(1)(b)(i) of the Electoral Act be amended so that the number of signatures required in support of a nomination by a candidate not endorsed by a registered political party is increased from six to 50.Response42. Supported. Although there will be additional time required to check the signatures on nominations lodged near to Close of Nominations, the 24 hour period in Recommendation 42 between Close of Nominations and Declaration of Nominations will allow sufficient time to complete the task. The amendment is included in the Electoral and Referendum Amendment Bill 1997.Recommendation 42That sections 156(1), 176 and 213(1)(a) of the Electoral Act be amended to reduce the nomination period by one day (to not less than 10 days or more than 27 days), with the declaration of nominations to be held 24 hours after the close of nomination. Section 211 and 211A of the Act (which refer to the "closing" of nominations) should be amended, so that Senate candidates and groups still have 24 hours after the declaration to advise the AEC of their desired preference distributions.Response43. Supported. The amendment is included in the Electoral and Referendum Amendment Bill 1997.Recommendation 43That sections 176(1), 213(1)(a) and 283(1) of the Electoral Act be amended to allow the Senate ballot paper draw and the declaration of the Senate result to be carried out at the place of nomination, or at another convenient location as decided by the Australian Electoral Officer, if insufficient space is available at the AEC Head Office.Response44. Supported. The amendment is included in the Electoral and Referendum Amendment Bill 1997.Recommendation 44That the Electoral Act be amended to enable registered party names or abbreviations, as appropriate, to be printed against the names of candidates, where two or more parties are seeking to use the same party identifier to endorse candidates at an election. An appropriate description should also be able to be used if necessary.Response45. Not supported. The Government believes that an amendment is unnecessary.Recommendation 45That section 169B of the Electoral Act be amended to provide that a candidate endorsed by more than one political party must specify to the AEC, in writing, the name of the political party to be printed on the ballot paper.Response46. Not supported. The Government considers that the matter is already adequately covered by section 169B of the Commonwealth Electoral Act 1918. The Government notes the ALP minority report supports this view.Recommendation 46That the Electoral Act be amended to enable a registered political party to object to the continuing use of a party name and/or abbreviation by another party which obtained its registration by claiming related party status to that registered political party, where that relationship no longer exists.Response47. Supported. The amendment is included in the Electoral and Referendum Amendment Bill 1997.Election CampaigningRecommendation 47That the Electoral Act and the Broadcasting Act be amended to prohibit, during election periods, "misleading statements of fact" in electoral advertisements published by any means.Response48. Not supported. The Government firmly believes that political advertising should be truthful in its content. However, any legislation introduced to enforce this principle would be difficult to enforce and could be open to challenge.49. Previous Committees have found that it was not possible to legislate to control political advertising and that voters, using whatever assistance they see fit from the media and other sources, remain the most appropriate arbiters of the worth of political claims.Recommendation 48That section 328 of the Electoral Act and section 121 of the Referendum Act be amended, to provide that where an electoral advertisement is presented so that the AEC believes there is no reasonable doubt as to the individual who, or body which, is responsible for its publication, the authorisation requirements will be taken to be satisfied. The authorisation provisions should still specify that correct name and (street) address details must be clearly displayed.Response50. Not supported. The Government believes that the amendment would weaken the requirements regarding the authorisation of material. Although the Democrat minority report calls for strengthening of the provisions to prevent hidden authorisations and funding being used to attack political opponents, the Government considers that current provisions in the legislation are sufficient.Recommendation 49That section 331 of the Electoral Act ("heading to electoral advertisements") be amended to ensure that a) as well as newspapers it applies to other periodical newssheets and magazines that accept paid advertisements, and b) it applies to advertisements containing electoral matter whether inserted "for reward" or free of charge by the owner or editor of the publication.Response51. Supported. The amendment is included in the Electoral and Referendum Amendment Bill 1997.Recommendation 50That section 332 of the Electoral Act and section 125 of the Referendum Act ("authors of reports etc. to be identified") be repealed.Response52. Supported. Section 328 of the CEA operates constantly and effectively deals with authorisation requirements.Recommendation 51That a review of the level of penalties for offences under the Electoral Act and the Referendum Act be undertaken by the AEC with the assistance of the Attorney-General's Department, with a view to bringing the penalties into line with penalty rates for comparable offences under other Commonwealth statutes.Response53. Supported.Recommendation 52That the enrolment form be amended to provide for electors' salutation details, and that section 91 of the Electoral Act be amended so that electors' gender, age and salutation details are provided to Members of Parliament and registered political parties, subject to a) sections 91A(1A)(c) and 91A(2)(c) of the Act being amended to make it clear that the "permitted purposes" in relation to MPs and registered parties include research purposes, and b) the penalties for misuse specified in sections 91A and 91B of the Act being increased from $1000 to $10,000 (the outcome of the review of penalties provided for in Recommendation 51 should not delay the proposed increase).Response54. Supported. The estimated cost of implementing this recommendation by itself is $62,000. If Recommendations 2, 3 and 5 are implemented at the same time, the additional cost of this recommendation is $12,000. The Government also notes the objections of the Democrat member of the JSCEM. However, the Government believes that the provision of this information to Members of Parliament, Senators and political parties is a necessary and legitimate use of information within the democratic process with respect to the role of communicating with electors.Recommendation 53That sections 89 to 92 of the Electoral Act, concerning improper use of roll information, be reviewed to take account of developments in computer technology. The existing entitlements of MPs and registered political parties should be maintained .Response55. Supported.Recommendation 54That the Electoral Act be amended so that the prohibition on canvassing at "special hospitals" and hospitals that are polling places applies from the Monday before polling day to the expiration of polling day, and so that the gazettal of special hospitals is effective on an ongoing basis.Response56. Supported. The amendment is included in the Electoral and Referendum Amendment Bill 1997.Election Funding and Financial DisclosureRecommendation 55That section 314AC(1) of the Electoral Act be amended so that political parties are required to disclose a total amount of $5000 or more, rather than $1500, received from a person or organisation during a financial year.Response57. Supported.58. The Government notes ALP and Democrat dissent to this recommendation and Recommendation 57. However, it agrees with the majority report of the JSCEM that the reporting thresholds should more adequately reflect current financial values and that the scenario painted in the dissenting reports that donors would go to extraordinary lengths to avoid disclosure is in most cases unlikely.59. The Government also notes the Democrat recommendation that consideration be given to the Recommendation 128 of the report of the Western Australian Commission on Government. This recommendation includes the proposal for the immediate disclosure of donations over $10,000 by the recipient. As the federal system already requires annual disclosures by political parties, the Government is of the view that the adoption of this recommendation would add little to the current provisions and does not support the immediate disclosure of donations.Recommendation 56That section 314AC(2) of the Electoral Act be amended to raise from $500 to $1500 the threshold for counting individual amounts received.Response60. Supported.Recommendation 57That section 305B(1) of the Electoral Act be amended to increase from $1500 to $10,000 the amount above which a donor to a registered political party must furnish a return for the financial year.Response61. Supported.Recommendation 58That section 309 of the Electoral Act be amended so that registered political parties are not required to lodge returns of electoral expenditure.Response62. Supported. The amendment is included in the Electoral and Referendum Amendment Bill 1997.63. The Government notes the Democrat minority report concerns. However, returns of electoral expenditure only report specified expenditures over a set time frame. Their abolition would not detract from the core principle of disclosure which is to make public the details of those funding political parties.Recommendation 59That the Electoral Act be amended to allow registered political parties to lodge their audited accounts in place of the annual return, subject to a) the accounts containing a level of detail consistent with Part XX of the Act and b) the format of the accounts being approved by the AEC. Response64. Supported. However, it should be optional, not mandatory that parties lodge audited accounts in the place of the annual return. The amendment is included in the Electoral and Referendum Amendment Bill 1997. The AEC will only approve accounts which provide the required detail in a simple format which allows them to be easily interpreted as the annual return.Recommendation 60That section 314AD of the Electoral Act be amended to replace the current requirement to report in detail amounts paid with a requirement to report total expenditure .Response65. Supported. The amendment is included in the Electoral and Referendum Amendment Bill 1997.66. The Government notes the concerns expressed in the Democrat minority report. However, the abolition of the current requirement to report expenditure in detail would not detract from the core principle of disclosure. (Section 314AB already requires the reporting of total expenditure, therefore, the action required is the full repeal of 314AD).Recommendation 61That section 78 of the Commonwealth Income Tax Assessment Act be amended so that donations to a political party of up to $1500 annually, whether from an individual or a corporation, are tax deductible.Response67. Supported.Recommendation 62That section 78 of the Income Act Assessment Act be amended to provide that donations to an independent candidate at a Federal or State election are tax deductible, at the same level as donations to registered parties.Response68. Supported.Recommendation 63That the Electoral Act be amended so that the amount of public funding available is based on the total enrolment at the close of rolls for an election, multiplied by the amount payable per elector as in section 294 of the Act.Response69. Not supported. The Government does not agree that a change to the current arrangements is necessary.Recommendation 64That section 311A of the Electoral Act, concerning annual returns by Commonwealth departments, be deleted and inserted in more appropriate legislation. Response70. Supported. The Government is considering the appropriate legislation into which it can be inserted, and an amendment will not be made until that other legislation is determined.71. There is also dissent to this recommendation from the ALP and Democrat members of the JSCEM. The ALP say there is a need for the requirement and the most rational site is the CEA. The Democrat Report says it will only support Recommendation 64 if those provisions remain applicable until actually replaced in more appropriate legislation. They also recommend that section 311A be given a sunset clause, operable once it is replaced in other legislation.Other MattersRecommendation 65That when available, any government proposal for reorganisation of the AEC divisional office structure be referred to this Committee for inquiry and report.Response72. Supported. The Government notes the recommendation in the Democrat minority report that the ANAO, which has initiated a performance audit of the AEC, examine practical ways in which federal and State electoral commissions could consider joint efficiencies to the benefit of both. In 1992, the JSCEM reported on its examination of the cooperation and efficiencies between federal and State electoral commissions. There has been considerable cooperation and work toward efficiencies since that time. The ANAO does not have the legal mandate to review State Government operations. Additionally, the Government does not consider it appropriate that a Commonwealth agency examine State electoral commissions.Recommendation 66That if regionalisation does not proceed, funding for AEC divisional offices be increased to a level sufficient to maintain a permanent staff of three in each office.Response73. Noted. The AEC has sought additional funding in the context of the 1998-99 budget to allow Divisional Office staffing levels to be increased to three.Recommendation 67That if regionalisation does not proceed, the government provide special project funding as a matter of urgency to enable the replacement of information technology used in AEC divisional offices.Response74. Noted. The AEC has incorporated the replacement of information technology into its outsourcing initiative. Recommendation 68That section 188 of the Electoral Act and section 61 of the Referendum Act be amended to provide that where Australian Defence Force (ADF) personnel are serving in an overseas country as a formed unit, and Australia Post certifies that postal vote applications or ballot papers would not, if posted, reach the personnel in time for their votes to be cast before the relevant deadline, then the requirements of section 188 and section 61 shall be satisfied if a Divisional Returning Officer provides the relevant applications or ballot papers to a designated member of the ADF.Response75. Supported.Recommendation 69That similar amendments be made to the Electoral Act and the Referendum Act to cover cases where the AEC uses services other than postal services, such as contractual delivery, for the conveyance of postal voting material.Response76. Supported. These amendments are included in the Electoral and Referendum Amendment Bill 1997.Recommendation 70That the Electoral Act and the Referendum Act be amended to provide explicitly that a failure of an alternative mechanism to the postal service shall not, in cases where the postal service has broken down, form the basis for a challenge to the result of the election in the Court of Disputed Returns.Response77. Supported.Recommendation 71That the Electoral Act and the Referendum Act be amended so that the Court of Disputed Returns or the High Court must decide election or referendum petitions "as quickly as is reasonable in the circumstances".Response78. Supported.Recommendation 72That section 354 of the Electoral Act be amended to enable the High Court to remit aspects of a petition to a Supreme Court, with the High Court retaining final jurisdiction on relief.Response79. Supported.Recommendation 73That the Electoral Act be amended so that within 75 days of the resignation or death of a Member of the House of Representatives, a writ must be issued for a by-election (except in the four months before the expiry of the House of Representatives by effluxion of time). A similar amendment should apply to supplementary elections caused by, for example, the death of a candidate after the close of nominations.Response80. Not supported. The Government is not satisfied that the imposition of a time limit is appropriate with regard to the issuing of the writ for a by-election.Additional recommendations in the Democrat minority report:i) That the electoral system for the Senate be left operating as at present.Response81. The Government is on record (House of Representatives Hansard page 6761) as saying that it has no plans to change the voting system for the Senate.ii) The AEC Public Awareness Program specifically target voter education on preference voting, and voter confusion over the count for the Senate and HoR.Response82. The Government notes that the AEC's public awareness program already does this.iii) That if an AEC registered candidate is disendorsed by a political party or expelled by that party between the time of AEC official acceptance of that nominated candidate and the date of the election, then the AEC must ensure all polling stations and polling booths in the relevant electorates clearly indicate that fact.Response83. Not supported. This is an internal matter for the political parties.iv) That if a Parliamentarian is elected as a representative of a political party, unless he or she resigns or is expelled from that particular party, or that party has a name change or ceases to exist, then they must continue to style themselves as being from that party.Response84. Not supported. This would be an impossible situation to monitor. It is also an internal matter for political parties.v) That the provisions relating to the Party Name registration be reviewed and tightened.Response85. It is not clear what is intended by this recommendation. However, the Government will consider any submissions which detail problems with the current party registration system and propose practical solutions. vi) That the Electoral Act be strengthened to prevent hidden authorisations and funding being used to attack political opponents.Response86. Not supported. The Government considers that the existing provisions are sufficient.vii) With regard to how-to-vote provisions the Australian Democrats recommend the melding of the Tasmanian and New South Wales laws into the Federal law.Response87. Not supported. Tasmania bans the distribution of all electoral matter on polling day or the day to which polling has been adjourned, and NSW requires the registration of all electoral material, with the application for registration to be made from the date of nomination to 8 days before polling day.88. The Government believes that the banning of the distribution of how-to-vote cards raises civil liberties questions and severely reduces the freedom of participation of enthusiastic party workers in the campaign process. Handing out how-to-vote cards is one of the few means by which supporters of a candidate can participate in a campaign.89. To have the cards registered, as in NSW, would be a considerable administrative load.viii) That the AEC take an early opportunity to trial, at a by-election, systems of displaying how-to-vote- material inside polling booths.Response90. Not supported. Priority must be given to the display of the AEC's own voter assistance material. The AEC cannot become involved in policing delivery or specifying size, spacing or coverage of material by political parties. Additionally, how-to-vote material for the Senate could not be trialled at a by-election and the size of this material would cause considerable problems at polling places where space is restricted.ix) Each AEC polling booth electoral officer should be required to collect one sample of each how-to-vote card handed out, for records and analysis purposes.Response91. Not supported. This is an impractical suggestion. In NSW alone it would require the collection of in excess of 3,000 how-to-vote cards. Apart from the diversion of resources, the AEC cannot be responsible for ensuring it has a sample of every card. Nor, is it clear what the purpose of the analysis would be.x) Political parties which receive donations from Trusts or Foundations must be obliged to return the money, or forfeit the money donated unless the following is disclosed: a declaration of beneficial and ultimate control of the trust estate, including by trustees;a declaration of the identities of the beneficiaries of the trust estate, including in the case of individuals, their countries of residence and, in the case of beneficiaries which are not individuals, their countries of incorporation or registration, as the case may be;details of any relationships with other entities;the percentage distribution of income within the trust; andany changes during the donations year in relation to the information provided above.Response92. Not supported. The provisions covering associated entities already provide for detailed disclosure by trusts and foundations closely associated with registered political partiesxi) That where any State or Territory requires disclosure of political donations by just one sector of the community, then all other organisations and companies should also have to comply with this requirement in that State.Response93. Not supported. This is a matter of State legislation and is not applicable to the Commonwealth Electoral Act 1918.xii) That the ANAO in its performance audit of the AEC examine practical ways in which Federal and State Electoral Commissions could consider joint efficiencies to the benefit of both. 94. Not supported. In 1989, the JSCEM examined the cooperation and efficiencies between federal and State electoral commissions and there has been considerable cooperation and work toward efficiencies since that time. Additionally, the Government does not consider it appropriate that a Commonwealth agency examine State electoral commissions. The ANAO does not have the legal mandate to review State Government operations. Therefore this recommendation cannot be included in the audit, which will only focus on the AEC's Corporate Governance Framework, and associated issues, from a Commonwealth perspective.xiii) That the dates of elections be fixed and preset by legislation.Response95. Not supported. The Democrat recommendation may also require change to the Constitution.xiv) That legislation should be introduced to impose a financial penalty on a member of the House of Representatives who resigns without due cause.Response96. Not supported. Imposing a penalty on a member of the House of Representatives who resigns without due cause raises issues of equity in relation to Independent Members who do not have political party machinery behind them to support the payment of a penalty. Small parties may not want to or be able to provide that support, nor for that matter may large parties want to provide that support.97. Further, questions of definition must arise, such as to the threshold of reasons for resignation that trigger the penalty. For example, resignation for reasons of ill-health or family problems would presumably have to constitute penalty exclusions. Once it is accepted that some exclusions are necessary, the further question arises as to how such cases should be arbitrated, particularly given that such arbitration would inevitably involve personal and private factors, with their attendant difficulties in interpretation.Documents2404240410000ACTING DEPUTY PRESIDENTThe ACTING DEPUTY PRESIDENT—I present an internal audit report by KPMG on the data matching of travel allowance records for senators, processed by the Department of the Senate, for the period of 1 July 1995 to 30 June 1997.17:14:002404Ray, Sen RobertSenator ROBERT RAYUI4VICALP00—by leave—I move:That the Senate take note of the document.I know the pressures, so I am not going to be particularly long. This is the last KPMG report that we are going to get. It was made necessary, of course, because of the divided responsibility of paying travel allowance and actually travelling between the Department of the Senate and the Department of Finance and Administration, and its predecessor, the Department of Administrative Services. For the two-year period that this report covers, it shows that only 2.9 per cent of travel allowance claims required further reconciliation. It is quite a low figure—2.9 per cent—but then remember that the error rate that they found involving repayments through mistakes was a mere 0.49 per cent. Again, if you compared that with commercial standards or somewhere else, is quite a remarkably low figure.I have to say, however, that the tables contained in this report on page 5 and page 7 are quite confusing in some ways. Let me give you an example. In the data matching results in 1996-97 it shows that one senator had 24 unreconciled claims until further checking; in the final column it shows that all 24 claims were reconciled. What it does not tell you is whether that senator paid any money back at all. It is quite possible that that person had 24 challenges, resolved them all, and was not involved in one repayment. Someone who was up the list, who may have had eight misclaims, might have had to repay all eight. It is quite a confusing table. If it was done deliberately, I congratulate them for doing it in that way, because it certainly confused everyone.I was very pleased that I received two letters from KPMG, on the two occasions they sent them out, and each time they advised me that I had no unreconciled claims. This, of course, does not go to my credit at all. It just goes to the credit of my staff, who must have put all the forms together accurately and diligently, and I thank them for that. I also stress that mistakes will happen and they have clearly happened here.We, as an opposition, have always tried to benchmark where the line is between mistakes and exploitation. It is always an arbitrary figure. We always put a figure of about eight for a year. Eight or less could probably be explained through mistakes and forgetfulness. Some people always assume they might have been here on a Thursday night, and for some reason got an early flight, and that was not picked up by their staff member in travel allowances claimed. But anything beyond that we think needs a very serious look.But the government has chosen today not to table its promised travel details for the period of July to December 1997. The opposition understands the minister's reasons for this. The opposition endorses the minister's decision not to table those details here today. What is proposed here is a far more detailed record of members' and senators' travel than has ever been tabled in this chamber before. Certainly, you can go to every state parliament in the country and you will see nothing like this; the transparency will be nothing like the system that is evolving in the federal parliament. I would almost say it is probably the most transparent system of any parliament around the globe.Of course, to try to get this information ready provided an absolutely mammoth task for DoFA. The documents alone—not the published ones: the published ones will be about 800, and there are the ones kept in reserve for access on application—when the two are added together, total about 2,000 pages of information that they have had to collate, print and make sure they are absolutely accurate. For instance, never before have we published the commercial airfares that senators and members have incurred in the course of their duties. That information will be published. Naturally, travel allowance will be published, Comcar costs, the costs of a private plated vehicle that you get under the Remuneration Tribunal provisions—a whole range of information that has never been put on the public record before is intended to be put on the public record.So DoFA has faced an enormously difficult and massive task in accumulating this information and making sure it is accurate. The method of doing so, of course, was to send each senator and member what it was proposed to publish so they could check and make any corrections. I have to say, and it is not DoFA's fault, hundreds and hundreds of corrections had to be put into the system. Even having done that task, when DoFA resubmitted those forms to all of us, some of the mistakes that were supposed to be corrected continued and more mistakes were found.I think Minister Minchin has made a very proper decision that if he is not guaranteed in his own mind that the 800 pages are mistake free, he is not going to table them in this parliament until they are mistake free. The opposition agrees with him in that decision. Lest anyone run around from the press gallery or anywhere else saying there is some sort of cover-up here, a lack of transparency, or a failure to do duty, the real prime responsibility is to publish this information and make sure that it is accurate.When it is finally published, some caution should be used in analysing the figures. Some attempt should be made to master the methodology involved in these figures. I want to give you a couple of examples. First, for the first time ever, we are going to have published the commercial airfares of each senator and member, including ministers and office holders. Remember, it is natural that those who are coming from Sydney and Melbourne are going to have a far lower figure than those from Perth, Cairns and Townsville.UW4CRANESenator Crane—Try Jerdacuttup!UI4Ray, Sen RobertSenator ROBERT RAY—That is right. But, secondly—remember this, Senator Crane, you have to be careful about this—this is money paid in that period, not necessarily travel undertaken in that period. If you are like me and you are booked in advance, all the money goes in that period, even though the travel is later.But even more risky is that if you have been using a travel agent or someone else who has been very slow to process your previous year and a half, that will all be dumped in that six-month period. So anyone reading those figures should go to the footnotes. If they have any doubt, once the figures are published and before any newspaper articles appear, journalists should ring the DoFA hotline just to check whether there is some explanation for what may look like, in some case, an extraordinarily high figure.The final point I mention is this: let us say that Senator Crane or I have a figure of $15,000. Amongst that could be $3,000 worth of expenditure on flights that were not taken—where you have cancelled the ticket but the refund is not in. So that report would show Senator Crane or me as having expended $15,000. The next report of course would show a $3,000 refund, but you have got to be careful that no journalist or anyone else says, `Your figure is extraordinarily high.' If you had taken out the cancelled tickets, it would have just come down to the average.Again, I welcome the tabling of the KPMG report. I think they have done a fairly good job. It indicates that members of parliament have not made many mistakes in travel allowance claims. Where there has not been sufficient verification, four out of five of these claims have been reconciled by other evidence, and only 0.49 per cent represent mistakes in which refunds have had to be made. There are not many organisations in the commercial sector that can show you a mistake rate that low. For all the bagging politicians get about their entitlements, most of them, despite their range of duties and pressures, have managed to get this right.So the much more transparent system with a much wider set of figures—which I presume we will see in May—will do more than all the deliberations of the Remuneration Tribunal to keep the system honest. In 1983 Labor initiated a task of making the system transparent. We progressed with that through the next decade, making it more and more transparent. That has now been enhanced by Senator Minchin—and I give him credit for that—who has made it more transparent, keeping in mind some privacy aspects which should be there. By making it transparent, we will have a system that will mean that anyone in future who steps over the line or decides to be a maximiser or a cheater on entitlements will get caught.2406The ACTING DEPUTY PRESIDENTThe ACTING DEPUTY PRESIDENT (Senator Reynolds)10000PON/A10—Order! On the KPMG internal audit report of 1995 to 1997, last year KPMG was asked to audit travelling allowance payments made to senators during financial years 1995-96 and 1996-97. The audit was confined to an electronic matching of Senate department travelling allowance records with DAS and other travel records. Where the records matched, the auditors concluded that the senator was at the place for which travelling allowance was claimed and the records were reconciled.Where the records did not match, the auditors assumed this was because the official travel records were incomplete. Senators and former senators were asked if they had any additional travel information, such as frequent flier point records, to supplement the official travel records. Where this additional information matched with the payments information, the auditors concluded that the senator was at the place for which travel allowance was claimed and the records were reconciled.In other cases, however, with the assistance of senators and former senators, a review of travel records identified errors in claiming travelling allowance or in processing claims. This resulted in some repayments of travel allowance by senators and some payments to senators by the department of previously unclaimed travelling allowance.The auditors examined 13,029 travelling allowance records and reconciled 12,657—or 97.1 per cent of them—in the initial data matching process. Of these, 372 travelling allowance records were not initially reconciled because the official travel records were incomplete. Senators and former senators were asked if they could assist with any additional travelling information, again, frequent flier point records. Of these 372 travel allowance records, 259—or 70 per cent—were reconciled as a result of such additional information. Of the remaining 113 unreconciled travelling allowance records, 94 were due to incorrect claims, eight arose from processing errors and 11 are still under examination. Thus, of 13,029 travelling allowance claims involving payments of $2,043,610, there were 94 incorrect claims, or 0.7 per cent of all claims.The KPMG report makes two matters clear. Firstly, the mere fact that a senator was asked for additional information casts no reflection on that senator. It means only that the official travel records may have been incomplete or open to misinterpretation by auditors, and senators may have had—and indeed did have—other useful travel records or information. Secondly, the auditors concluded that the overwhelming majority of travelling allowance records were fully supported by independently collected travel records, and this reflected favourably on the overall adequacy of financial controls over travelling allowance payments.Question resolved in the affirmative.2406240610000ACTING DEPUTY PRESIDENTThe ACTING DEPUTY PRESIDENT—In accordance with the provisions of the Audit Act 1901, I present the following report of the Auditor-General:Report No. 39 of 1997-98—Performance Audit—Management of Selected Functions of the Child Support Agency.24072407Brownhill, Sen DavidSenator BROWNHILLRD4NSWNP10—I present the OECD Environment performance review of Australia, together with a statement by the Minister for the Environment and seek leave to incorporate the statement in Hansard .Leave granted.The statement read as follows—I am pleased to present to the Senate the OECD's first environmental performance review of Australia.The document is a comprehensive and measured audit of Australia's environment; a catalogue of the measures that governments have implemented to repair and protect it; and a set of proposals for development of environmental policy and policy processes.The most gratifying feature of the report is the authors' acknowledgment of our responsible stewardship of what they describe as an "ecologically unique continent, characterised by mega-bio-diversity", and our external territories.And this in spite of the pressures created by what the review notes is our relatively fast growing economy within the OECD, reliant on primary industries and energy intensive industries.More needs to be done. The examiners offer for consideration 52 proposals relating to formulation and implementation of policy, integration of environmental and economic policies, and international co-operation.We shall as a government examine the proposals carefully and respond sensibly, for this report is testimony to the axiom that good environmental policy does not have to be radical policy.Environmental and economic objectives can be integrated sensibly, as demonstrated by the review's recognition of Australia's voluntary and co-operative approach to environmental management, and our continued, successful implementation of the National Strategy for Ecologically Sustainable Development.Indeed, it is highly complimentary to the government that most of the review's proposals entail development of our existing programs or expansion of our existing policy framework.The authors' recognition of the scope for promoting consistent environmental and natural resources management objectives through the Natural Heritage Trust, especially in the context of the urgent need to maintain habitat and biodiversity, is vindication of the government's foresight. The Trust is having a large and beneficial impact on the terrestrial environment. The government also is committed to developing and implementing an oceans policy to protect Australia's marine biodiversity and to ensure a sustainable fishing industry.This is in addition to the chain of dugong sanctuaries created this year in the southern Great Barrier Reef region, and the listing of two more species of whale as endangered species.We have anticipated or surpassed the review's proposals in other important policy areas as well.For example, when discussing the need to foster consistent environmental and economic objectives the review proposes "improvements in institutional mechanisms to more fully and consistently integrate environmental considerations into economic decisions at all levels of government".The government already has begun comprehensive reform of its environmental law regime to reflect and reinforce the review of the role of federal and state governments, conducted by the Council of Australian Governments.There have been similar advances in the international sphere since the review was completed.The review urges Australia to reduce its greenhouse gas emissions.At the time of the review, Australia's projected greenhouse gas emissions were forecast to be 43 per cent higher than 1990 levels by 2010 under a "business as usual" scenario.Since then the government has announced a $180 million parcel of programs which will reduce emissions to 18 per cent above 1990 levels by 2010.Subsequently, as a result of our participation in the Kyoto Protocol, we are seeking to reduce our emissions further: to 8 per cent above 1990 levels by 2012.This reduction, from 43 per cent above to 8 per cent above, will be a remarkable attainment.I welcome the report. It achieves its aim of creating a baseline for future reviews and offers a constructive contribution to our efforts to enhance existing environmental policies.The examiners—from Canada, New Zealand, Norway, Germany and the OECD Secretariat—visited Australia in April and May last year. They met representatives of federal, state and territory governments, industry, environment groups and academics.The draft report was examined in Paris in November. The Department of the Environment led the Australian delegation which included five senior federal and three senior state government representatives. I thank the examiners, and I thank the officers of my department and the many others who contributed to the compilation of the report.Miscellaneous2408240824082408Calvert, Sen PaulSenator CALVERT5F4TASLP10—On behalf of Senator Abetz, I present additional information received by the Legal and Constitutional Legislation Committee in response to the 1997-98 budget estimates hearings.Miscellaneous240824082408Crane, Sen WinstonSenator CRANEUW4WALP10—I present 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, together with submissions received by the committee and transcript of proceedings. I table the associated documents.Ordered that the report be printed.17:30:002408Lundy, Sen KateSenator LUNDY7G6ACTALP00—by leave—I move:That the Senate take note of the report.I would just like to spend a few minutes drawing the attention of the Senate to this report. There is in fact a minority report prepared as a result of this inquiry. I would like to turn my comments to the substance of that minority report. This issue of leasehold tenure in the ACT is something that has been subject to no less than six comprehensive reports. Initiated by both Labor and Liberal in the past, what we have seen with this bill is yet another effort on behalf of, this time, the ACT Liberal government to engage in a collaborative effort with their federal counterparts to once again inquire and explore the scope that exists within the system to change the ACT leasehold system. One would have thought that, by now, the futility of this exercise was well canvassed. I have to say the stated aim of the government's bill in its move to extend leasehold from a 99-year renewable term to a 999-year renewable term is to remove what they claim to be a disincentive to investment to the ACT. With respect to the Labor Party and as a result of the witnesses that came forth before this inquiry, we found that there is no compelling or factual evidence that presents any argument that would substantiate that our leasehold system provides this barrier. What we are dealing with is an ongoing campaign on behalf of certainly the ACT Liberals to try to create a bit of a smokescreen as to what some of the problems are in attracting investment to the ACT. Indeed, I contend that the responsibility of the flaws in any perceived difficulty in attracting investment is better placed at the foot of the ACT government and not on the furphy of an issue in once again attacking the leasehold system in the ACT. The issue that is claimed to be behind this bill has been quite dramatically discredited to the point where an explicit request by Labor members of the committee for witnesses to provide the substantive evidence that would show that this leasehold change would indeed improve investment was not forthcoming. It is based on anecdotal comments and, as I said before, the advocates of such a plan are not in a position to progress any solid argument. The other issue I would like to comment briefly on is the poor state of organisation of the ACT government with respect to this. During the process of the inquiry, specific questions were asked of the ACT minister responsible on how it was proposed to deal with this issue, given that this bill is enabling legislation which would open the door for the ACT assembly to change the leasehold tenure through their own acts. The minister's response was entirely inadequate. In fact, it became very obvious indeed that the ACT government was not adequately prepared, further providing substance to our view that this was tied in with a political stunt and not structured in any way to address the issue of substance that they claim motivated this bill in the first instance. I urge all senators who have an interest with respect to ACT land tenure issues to have a look at the arguments presented and canvassed in both the majority and minority reports. I believe you will find quite conclusively that there is absolutely nothing compelling about this bill that is worthy of the support of this chamber.5F4CALVERTSenator Calvert—Madam Deputy President, I wish to make a point. We did grant leave to Senator Lundy to make some comments. I point out that it is not the convention of this place to debate a report on legislation that has been referred by the Selection of Bills Committee. It is supposed to be debated at the time the bill comes into the place. But, on this particular occasion, because Senator Lundy said she was going to be brief, leave was granted. I do not want to create a precedent.17:36:002409Crane, Sen WinstonSenator CRANEUW4WALP10—by leave—This is enabling legislation. It meets the requirements of the Commonwealth legislation regarding the ACT and land tenure, which is supported by both sides of politics. Whether it happens or not is up to the people of the ACT through their elected government.Question resolved in the affirmative.Committees240924092409UNKNOWNThe ACTING DEPUTY PRESIDENT (Senator Reynolds)The ACTING DEPUTY PRESIDENT (Senator Reynolds)—I have received a letter from the Leader of the Australian Democrats seeking a variation to the membership of a committee.Motion (by Senator Minchin)—by leave—agreed to:That Senator Allison replace Senator Stott Despoja on the Employment, Education and Training References Committee till 30 June 1998 for the committee's inquiry into regional unemployment levels.Bills2409r4552409Consideration resumed.10000CHAIRMANThe CHAIRMAN—The committee is considering the Native Title Amendment Bill 1997 [No. 2] . The committee has completed consideration of opposition amendment N33. The question is that the bill, as amended, be agreed to.17:38:002409Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I seek leave to have schedule 2, item 3 recommitted.Leave granted.10000CHAIRMANThe CHAIRMAN—The question is that schedule 2, item 3, as amended, be agreed to.Question resolved in the negative.17:39:002409Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I think we now move to Greens-Democrats amendments 192 and 333 which oppose the following items:(192) Schedule 2, item 9, page 148 (lines 7 to 20).(333) Schedule 5, items 18 and 19, page 355 (lines 14 to 21).The idea of these amendments is to remove the sunset clause on compensation. It is a particularly bothersome clause. We have just made a decision in relation to sunset clauses. There should not be a point at which people are no longer able to be compensated, and I believe that this idea deserves the support of the committee.17:40:002409Bolkus, Sen NickSenator BOLKUSXE4SAALP00—The opposition supports these two amendments. They bring the compensation regime into line with the newly adopted position taken by the committee and, accordingly, should be supported. We proposed these amendments last time, and we support them this time as well.10000CHAIRMANThe CHAIRMAN—They are not amendments, they are opposition to schedule 2, item 9 and schedule 5, items 18 and 19.17:40:002409Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I simply record the government's significant disappointment that the committee has now removed the sunset clause in respect of applications altogether, and record our objections to the removal of the sunset with respect to compensation claims for the reasons I extolled in the last debate and earlier today.10000CHAIRMANThe CHAIRMAN—The question is that schedule 2, item 9 and schedule 5, items 18 and 19 stand as printed. Question resolved in the negative.10000CHAIRMANThe CHAIRMAN—The question now is that government amendments 62 to 65 be agreed to.Question resolved in the affirmative.17:41:002410Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I move:(213) Schedule 2, item 20, page 170 (lines 17 to 25), omit section 82, substitute:82 Federal Court's way of operatingObjectives (1) The Federal Court must pursue the objective of providing a mechanism of determination that is fair, just, economical, informal and prompt.Concerns of Aboriginal peoples and Torres Strait Islanders (2) The Court, in conducting proceedings, must take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders.Court not bound by technicalities etc. (3) The Court, in conducting proceedings, is not bound by technicalities, legal forms or rules of evidence.This amendment to omit section 82 allows—not requires, but allows—the Federal Court to take into consideration cultural and customary concerns. It is absolutely essential, for some modicum of fairness within these procedures, that that is able to happen. We have brought into the debate on a number of occasions particular examples where the actual existence of spiritual connections or culture means that people would not be able to fight their case unless the court could take those kinds of issues into consideration. It is not requiring the court to do so, but allowing the court to do so.As it stands, the bill will forbid the court from taking any further consideration than they would with those people who do not have the same cultural impediments to, for instance, presenting evidence about their families, or their lands and areas that are of importance to them, or some elements of their connection to the land. I think it is fairly fundamental to the whole issue, and I urge the Senate to support this amendment.17:43:002410Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I will not speak for very long. I rise simply to support Senator Margetts. This is an important issue and one that is being debated increasingly in these kinds of issues and in other courts as well—that is, that it is just to take account of cultural and customary concerns. I might add also that I would hope in the future that that might include language because, as the Senate knows, we have had a real problem, or an example of the problem, in our own hearings where evidence was given in Aboriginal languages and there was an inability of the Senate to have that evidence translated. I am not even sure or up-to-date as to just where that whole issue has got to, but it is an example of the problem that we face when we say that we are monocultural in our justice system but multicultural in terms of the nature of the society as it really is.17:44:002410Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I think there is a more fundamental question here and one that we should take into account. When one talks about native title, one talks about the incidence of native title and cultural and customary concerns. Native title is an embodiment of all those concerns. What the government is saying is, `Well, in some circumstances, the court can disregard the fundamentals of native title, the cultural and customary concerns.' What the legislation already says is that the court must take this into account. We think it is important that there be an imperative on the court to continue to take these concerns into account; to continue to take not just the words `native title' into account, but everything that is a constituent part of the concept of native title. This is an important amendment and is one that we moved last time in this debate. It was not carried last time, but what we are talking about here is an obligation on courts to continue to respect the composition of native title.17:45:002410Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—We did debate this whole matter at great length last time. The government opposes the replacement of our section 82 with the Democrat-Greens section 82 for the reasons I outlined last time. We do think the rules of evidence and concerns of Aboriginal people and Torres Strait Islanders are adequately dealt with in the existing section 82 and that the parliament should not direct the Federal Court in the way proposed by the replacement section 82.We do not think that this proposed section 82 takes account of the fact that we are now dealing with claims on coexisting title. It was all very well when the Native Title Act was written to operate on a presumption that proceedings would not involve other title holders. But now, for 40 per cent of Australia, it will involve coexisting title holders. The rules as to the Federal Court's operations in dealing with native title claims must be fair to all parties because it is a fact that other title holders may feel some prejudice if the rules are not fair to all who appear before the court. We think this unduly biases the Federal Court's way of operating in a particular manner that is not necessarily fair and even handed for all parties that will now be caught up in native title claims as a result of the Wik decision. So we oppose this amendment.17:47:002411Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I am advised that this is exactly the same as is already in the act; therefore, it is happening already. Quite frankly, we believe that the government is directing the court in saying that they cannot take these into consideration any more than they would any other land claimants. So the government is quite prepared to direct the court when it is to direct them away from customary consideration; this is actually going back to the position that exists already. I do not think there is much in the government's argument.17:48:002411Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I did say that when the Native Title Act was written, it was written on a presumption that we would not be dealing with claims on coexisting title. We now have claims on 40 per cent of Australia where there are coexisting title holders. It is most appropriate that we re-examine the rules and the method of operation.It is wrong to say, as was just said, that we are saying the court cannot take account of these things. We are leaving it to the discretion of the court. We are not trying to direct the court. We say, in conducting its proceedings, that the court may take account of the cultural and customary concerns of Aboriginal people. We leave it to the discretion of the court.DX5MARGETTSSenator Margetts—Yes—keep going.JX4Minchin, Sen NickSenator MINCHIN—Yes—`so as not to prejudice unduly any other party to the proceedings'. The suggestion being put is that the court should be able to prejudice other parties to the proceedings. That is a quite extraordinary proposition. We think the federal government's proposition is fair and reasonable to all parties, and certainly fair and reasonable to native title holders.17:49:002411Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—How do you take into consideration the cultural imperatives, cultural and customary concerns, without having a different way of looking at things? That is the whole point of it. You are meant to be able to take into consideration that different way of looking at things. That note in the legislation quite clearly—and the minister knows this—is designed to make it very difficult for the courts to take due consideration of those issues.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Reynolds)—The question is that the Democrat-Greens amendment 213 be agreed to.Question resolved in the negative.17:51:002411Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—The Greens-Democrats amendment 222 opposes the following item in schedule 2:(222) Schedule 2, item 25, page 185 (lines 8 to 14).It restores the National Native Title Tribunal's way of operating to what appears in the current act. We believe that is preferable to what the government has proposed.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—The question is that schedule 2, item 25, stand as printed. Question resolved in the affirmative.17:52:002412Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Amendment 222A opposes the following item in schedule 2:(222A)Schedule 2, item 26A, page 185 (line 17) to page 186 (before line 1).This is related to the National Native Title Tribunal. It is the issue of the change of operation in relation to whether the National Native Title Tribunal needs to be presided over by a judge or by someone who does not have that basic training and background and, hopefully, ability to remain separate from the pushes and pulls of politics. Therefore, I urge that the current situation in relation to a judge presiding over the National Native Title Tribunal remains and I urge the committee to support that.17:52:002412Bolkus, Sen NickSenator BOLKUSXE4SAALP00—All the other amendments on the running sheet in the name of the Greens (WA) are ones that the opposition moved last time. We continue to support them, including this one. Can I say in respect of this amendment that we did try last time to ensure that the presiding officer be a judge. We still think it is critically important that the presiding officer be a judge. We think that should be the case even more so for the future than for the past because the responsibilities in this area are going to be pretty enormous over the next few years. If government needs to do anything over the next few years it is to ensure that millions of dollars are put into the tribunal and the Federal Court to accommodate for the diverse range of litigation that will flow from this legislation.In a circumstance where people will be going to the tribunal and the courts more, it is important that the tribunal maintain a position of respect in the community. Justice French has done an enormous job over recent years. Part of his success has come from the fact that he has been recognised as an eminent judge. We think it is important that that precedent be continued. We think it is important, for the reasons I have mentioned, that the presiding officer continue to be a judge.The government says, `We may not find a judge who is interested in the job.' We still think it is important though and it be avail able to the government to ensure that a person can be appointed as a judge and then appointed to the tribunal thereafter. The important thing is that this area does demand the appointment of someone with the status of a judicial officer. For the reasons I have mentioned, we support this amendment.17:55:002412Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Currently only Federal Court judges or former judges from any jurisdiction can be appointed as presidential members after the appointment crosses the Prime Minister's desk. The amendments seek to change this requirement so that a person who has been a legal practitioner for at least five years can be appointed as a presidential member and inserts a new subsection into the table contained in section 110.As of late 1997, there were five presidential members, including the President, Justice French, and 13 ordinary members of the tribunal. Two of the current full-time ordinary members are Aboriginal. Ordinary members are only required to have been a legal practitioner for at least five years. The main difference between ordinary members and presidential members is the power to direct.The principle of non-judges being appointed to presidential positions may appear on the surface to be perfectly reasonable. For example, many experienced practitioners may have more knowledge about Aboriginal issues than most Federal Court judges or ex-judges. Judges are nearly all ruling class, middle age, white men. This is a paradigm that should be broken down and to select from such a select pool of people would be considered as inappropriate for the National Native Title Tribunal. To this end, there are no Aboriginal or Torres Strait Islander judges or ex-judges in Australia.Currently, the government is finding it difficult to find presidential members. Justice French wishes to resume his Federal Court duties but has recently been persuaded to remain until at least the end of the year. There does not appear in the Native Title Act any provision for the position of acting president and, in addition, the government can no longer compel judges to sit on tribunals. Wilson v. Minister for Aboriginal and Torres Strait Islander Affairs proved that. However, it is unclear whether the government is simply rejecting many possible appointees, especially ex-judges, because those willing to take up the job are perceived as being too progressive.Justice French is on record supporting the proposed changes. In his submission on proposed amendments in 1995 he stated:Under the proposed amendments the present organisational arrangements of the Tribunal would remain unchanged. The Registrar would continue to be the Chief Executive Officer of the Tribunal under the President and would remain the Registers of Native Title Claims and Native Title Determinations.Having regard to the desirability of distinguishing the role of the Tribunal from that of a court, it would be appropriate that no serving Judges be involved in its ongoing work. This would also have the advantage of limiting the diversion of resources from the Federal Court which will, on any view, have a significant role in the hearing and determination of native title cases or substantive issues arising from them.That would indicate that the government needs to provide more funding. Further, in his submission in August 1996 on section 110, Justice French stated:This section as it presently stands sets out the categories of membership of the Tribunal and the qualifications for appointment to those categories. The amendment extends the qualifications of Presidential Members to include persons who have been legal practitioners for five years or more. The amendment is supported. It will provide greater flexibility in the appointment of members to the Tribunal.That sounds on the surface to be reasonable. The Aboriginal people I have spoken to, such as Mick Dodson, the Social Justice Commissioner, and others from various Aboriginal corporations, believe that the requirement that presidential members come from the judiciary should remain.Three main reasons have been given. Firstly, they believe the government is wanting to open up the field not to appoint presidential members who are more appropriate, but to the contrary—to appoint people who will do the government's bidding. Secondly, they believe it will lower the stature of the National Native Title Tribunal which has come under considerable attack in recent times and this will become just another area where Aboriginal people's forums are downgraded. Thirdly, they believe that judges are less likely to be influenced by the government which has appointed them than a lawyer. Judges have had the experience of working in an environment with clear separation of powers and will respect the need to remain independent.Mick Dodson in particular has much more trust and respect for the judiciary than the government. In our conversation recently he said it was the judiciary which gave Aboriginal people native title and the government which is attempting to extinguish it. In his 1995-96 native title report, Mick Dodson wrote:This proposal may undermine the standing of the NNTT. In the establishment and consolidation phase of a body with the significant and unusual functions of the NNTT, it is vital that it be perceived as credible and impartial. This perception would be undermined if the President and Deputy President of the NNTT were not required to have judicial experience. I therefore believe that the proposed amendment is inappropriate.I believe the feeling is quite strong. In fact it has been said that some Aboriginal people felt the tribunal could be stacked with government lackeys. We cannot be a party to this kind of process. It has been debated before I know, and I urge the Senate to support this important amendment.18:00:002413Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—The Senate fortunately passed this amendment last time to ensure that governments did have somewhat more flexibility in regard to the appointment of the president of the tribunal. I would hope the Senate would again pass the bill as presented and not support the Democrat-Green amendment to oppose this.The history of this is that the Labor Party originally supported it but then did a backflip. Justice French, the existing head of the tribunal, has strongly supported this proposition and has said so to the parliamentary committee. The opposition seems to be driven by some paranoid suspicion about this particular government. It really is quite ludicrous.The point is that there are significant difficulties with the amendments we are proposing and the significant change to the operation of the tribunal as a result of the Brandy decision and the sorts of amendments that must be therefore made and in light of the High Court decision about what serving judges should or should not do in respect of executive functions. I think that is increasingly a problem, which means that appointing serving judges to this position is going to be an increasing problem. Therefore, you are restricted to former judges.This is not a court; this is a mediation service and an arbitration service in the right to negotiate. I think it is important for governments of whatever persuasion and whatever colour to be able to ensure that the best possible person to head a tribunal of that kind, a mediation service, should be appointed and indeed to ensure that if there is a qualified Aboriginal person available who is the best person for the job to ensure that they can do it. We think it is very important that the provisions in the bill are passed. The ALP should support them because they did before. As I say, Justice French strongly supports them. I think this amendment should be opposed.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Reynolds)—The question is that schedule 2, item 26A, stand as printed.Question resolved in the affirmative..18:03:002414Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—As I mentioned in my introductory remarks when we began dealing with this section on the claim process and the sunset clause, I would be intending to move some major areas of amendments. That is not to say the ones I have not moved are not still important but the voting views of the Senate are becoming patently obvious. I will not be seeking to move the remainder of amendments in this section.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Is that up to and including 220, Senator Margetts, or will you now move 209 and 216 according to my running sheet?DX5Margetts, Sen DeeSenator MARGETTS—I do not know if there is anything further that Senator Woodley would like to move from this section, but my opinion was that it was up to 220.18:03:002414Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I consulted with Senator Margetts about this. We believe that what we have done so far is a clear indication of what the government thinks about this process. Obviously, we are not going to achieve any more by going any further.18:04:002414Bolkus, Sen NickSenator BOLKUSXE4SAALP00—As I said earlier, the amendments that are part of this package are amendments we moved last time and were defeated. We were in the business, as I mentioned a number of times in this debate, of trying to defend the positions that were carried last time in this debate and make some incremental additions if that were at all possible. It is unfortunate that a lot of these provisions which are quite critical to the operation and workability of the scheme have gone down. I think all we are doing here is deferring the issues and problems for the courts and then for parliament. At a later date we will have to fix them up and whatever government is in place will have to reintroduce legislation to fix up the workability provisions of this act.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—We now move to representative bodies, revised No. 2, sheet 18.18:05:002414Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—In accord with our practice, I suggest that I first move government amendments to the provisions relating to representative bodies. They are government amendments 77 to 81. I would like to speak briefly to them.The purpose of these amendments is to ensure that an appropriate balance is reached between the operational needs of representative bodies and ensuring their clients receive a professional standard of service. Government amendment 77 limits the class of documents and records to which access may be allowed or that may be given or copied under ministerial directions when one representative body is replaced by another. The documents or records which may be affected by ministerial directions are only those which are reasonably necessary for the replacement body to operate effectively. Furthermore, government amendment 77 prevents the minister from making directions that allow a replacement representative body to have access to or make copies of documents that relate to claimed or determined native title rights unless the replacement body has been asked to assist the claimant or holders of those rights.Government amendment 78 ensures that when dealing with traditional materials, such as artefacts, documents and the like, a representative body must be sensitive to the wishes of the traditional custodians of those materials. Amendments 79 and 80 clarify the notification functions of representative bodies to reduce duplication. The act imposes obligations on representative bodies and other persons to notify native title holders. Where it is likely that a person who may hold native title has already been notified, the representative body need not give notice to those persons.Finally, government amendment 81 inserts a note pointing out that where a person is refused assistance by a representative body he or she can obtain a statement of reasons for the refusal under section 13 of the Administrative Decisions (Judicial Review) Act 1977. Those amendments do take account of the fruitful and useful discussions we have had with all parties since the last debate to see how we can further improve the provisions relating to representative bodies, which I think generally are supported. So I commend these amendments. I move:(77) Schedule 3, item 11, page 238 (lines 3 to 23), omit subsection (1), substitute:Commonwealth Minister may issue directions(1) The Commonwealth Minister may, by written instrument, issue directions requiring, or relating to, either or both of the following: (a) a former representative body returning documents and records, relating to the performance of its functions or the exercise of its powers in respect of its former area, to the person or persons who provided them to the body; (b) the former representative body allowing access to, giving or giving copies of documents and records held by the former representative body to a body (the replacement body ) that has become the representative body for all or part of the former representative body's former area, where the documents and records are reasonably necessary for the performance of the functions, or the exercise of the powers, of the replacement body.Directions take effect on the day on which they are issued.Limit on directions(2) Directions must not require the former representative body to allow access to, give or give copies of documents and records, of the kind mentioned in paragraph (1)(b) that relate to: (a) a claim in a claimant application or a compensation application; or (b) native title rights and interests that are the subject of a determination of native title;to the replacement body, unless the replacement body has been asked by the claimants to assist them in relation to the claim, or has been asked by the persons who have been determined to hold the native title rights and interests to assist them in relation to those rights and interests.(77A) Schedule 3, item 32, page 278 (lines 17 to 30), omit the item.(78) Schedule 3, item 11, page 239 (after line 10), after section 203FC, insert:203FCA Representative body to comply with wishes of traditional custodians(1) In performing its functions and exercising its powers, a representative body must make all reasonable efforts to comply with the wishes of the traditional custodians of any traditional materials in its possession about the way in which the traditional materials, and any information contained in them, are to be dealt with.Definitions(2) In this section: traditional custodian of traditional materials means a person who, according to the traditional laws and customs concerned, is responsible for the traditional materials. traditional materials means documents, records or other things that are of significance to Aboriginal peoples or Torres Strait Islanders according to their traditional laws and customs.(79) Schedule 3, item 30, page 259 (lines 3 to 6), omit all the words in paragraph 203BG(a) after subparagraph (ii), substitute "are brought to the attention of any person who the representative body is aware holds or may hold native title in relation to the land or waters, where the representative body considers that the notices would be unlikely to come to the attention of the person by some other means; and".(80) Schedule 3, item 30, page 259 (after line 18), after the note, insert:Note 2: This Act also imposes notification obligations on other persons.(81) Schedule 3, item 31, page 277 (after line 6), at the end of subsection (1), add:Note: The Aboriginal person or Torres Strait Islander is able to obtain a statement of reasons etc. for the decision from the representative body under section 13 of the Administrative Decisions (Judicial Review) Act 1977.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Patterson)—I would like to make a suggestion from the chair. Last night we were in the same situation. If people who have general comments on 77 to 81 could make them, we will then go back to specifics as we take each amendment.18:07:002416Bolkus, Sen NickSenator BOLKUSXE4SAALP00—This is another area in which in the last debate there were a whole range of amendments moved. Once again, most of those amendments were moved by the Greens (WA). The opposition will support most of those amendments. In this respect, we have once again tried to work on and build on the provisions that passed the Senate last year to see if we could actually add to what went through. Our concern last time—and our concern continues to be—was that rep bodies are in fact quite integral to the workability of the scheme. The legislation gives them more responsibility, provides more accountability and, particularly in respect of indigenous land use agreements, the burden will increasingly fall on representative bodies.We believe that they should be competent and they should be resourced. We also believe that accountability is extremely important in this area and, to a major extent, we support the government's measures for accountability. But we did find problems with the government's position last time, and we are finding them again this time. We believe that accountability should come together with self-determination and, although there should be a capacity for governments at the end of the process to have an override in principle of accountability, in the first instance, there should in fact be accountability directly to ATSIC, with the minister as a last resort.We also think that the re-recognition process proposed by the government is not well thought out. It does involve a lot of problems. It will mean more work for rep bodies at a time when this legislation will demand from them a lot more work. In fact all stakeholders will demand a lot more work and diligence in a much faster time period from the rep bodies. So there are problems with the government's proposals. These problems go very much to the heart of what representative bodies are all about—they are there to represent the organisations. As I said last time, the degree of accountability imposed on them this time is far in excess of that of any other community or private sector body which is in receipt of funds from government. Our concern is that what the government is trying to do is silence the critics but, knowing Aboriginal people, they will not be successful at that.As I said, the process has been to try to build on some of the protections retained last year. In respect of the government's amendments, although we support all of those amendments that have been put up by Senator Minchin, we do have concerns with some. In respect of transfers of documents and records, the ALP amendment would ensure that a rep body does take into account traditional laws and customs and does take into account the views of the people they represent when meeting these obligations.In respect of these specific amendments, I will speak to each of them as they come up. In summary, we support most of the government's amendments but, in respect of some, we have amendments which we will be pursuing.18:11:002416Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Senator Woodley is going to lead the charge, but I do have a problem. I have a rep bodies revised sheet, but it does not have any opposition amendments on it; I might need some guidance.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—On page 2 of revised sheet No. 2 there is an N45—amending government regulation 72. Do you have that now?XE4BOLKUSSenator Bolkus—I think what Senator Margetts might have is the sheet where the opposition's amendments were actually put in under the column of Greens (WA) amendments.DX5Margetts, Sen DeeSenator MARGETTS—Thanks. I now have the revised sheet, so I am a happy little vegemite.18:12:002417Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I want to speak in a general sense to these Greens (WA)-Democrats amendments and underline what Senator Bolkus and others have said that, in the end, representative bodies are one of those groups of people through whom the whole process of establishing native title will stand or fall. They are absolutely critical to the process, and that is why we have to make sure that we get right the legal framework in which they will operate.I think all of us have had representations and all of us have listened to evidence given in some of the native title committee hearings which showed that there have been shortcomings with some of the representative bodies. I would like to say that, while I think the shortcomings may be to do with the rep bodies themselves and how they are selected, part of the problem is also in the resourcing of those rep bodies and the framework in which they have had to operate.While I am saying there are criticisms, let me also say that in terms of some of the rep bodies—and let us recognise other people in this place besides senators—there is at least one legal representative in this place who has himself worked hard to try to resolve the Mapoon situation that I described earlier in speeches, where there was a dispute between the Aboriginal people themselves, those who are regarded as traditional owners of the Mapoon community and those who are historical people. I recognise that that dispute seemed intractable but in fact it was the rep body, the Cape York Land Council, which addressed that, and that is the appropriate body to do it. They can sympathetically get Aboriginal people together to find a solution.There are three broad areas that our amendments cover, and I would like to spell out what they mean. The first area is the area of re-recognition. The re-recognition process proposed for all representative bodies will cause massive disruption and unnecessarily divert the resources of the current representative bodies. Why the government sees this to be necessary rather than accepting the amendments that the Greens (WA) and Democrats are moving I cannot understand. But we consider that the de-recognition process in the amendments is sufficient to ensure that rep bodies which cannot perform the new functions can be adequately dealt with. Since there will not be a recognition process, there is no need for a transition period. All the provisions of schedule 3 come into force at commencement.The second area covered by our amendments is functions. Additional functions for rep bodies are to be inserted: a function of protecting the interests of native title holders and of other indigenous people interested in land, and a function of determining priorities and allocating resources. In addition, the scope of the facilitation and assistance function is to be broadened. Representative bodies gain the function of certifying agreements reached through the right to negotiate process. Further flexibility is to be given to the resolution of conflicts of interest, obtaining consent to general courses of action and notification of the performance of the internal review function.Finally, the amendments cover finance and accountability. Most of these changes remove the role of the minister in overseeing representative body accountability. The minister's role is to be limited to withdrawing recognition and changing areas of representative bodies and obtaining information to enable him or her to make such decisions. In addition, the funding period of rep bodies is linked to the period of the strategic plan and some flexibility is added to parts of the accountability regime. When we come to them I will give some more detail on each amendment.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—I propose to take out government amendment 77 and deal with that separately, since Senator Bolkus has an amendment to that. Senator Bolkus, would you like to move your amendment to the amendment?18:17:002418Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I move:(N45) After subsection 203FC(2), add:Traditional materials (2A) Directions must not require the former representative body to act in contravention of its obligations under section 203FCA.This amendment concerns the issue of transfer of documents and records, which is government amendments 77 and 78. These amendments are in fact intended to replace opposition 312 which was accepted by the Senate and by the House of Representatives last year. No. 77 now seeks to amend 312 by creating a more limited exception to the minister's direction than is provided by the amendment that was carried last year. The removal of the right of rep bodies which have privilege or copyright in documents to withhold those documents from later determined bodies is not significant, as rep bodies should never, in one sense, hold cultural information that matters. What this amendment does not do is extend to knowledge owned by native title holders cultural information collected whilst, for instance, identifying native title holders for the purpose of an ILUA or section 26A or some other provision under the act. The government amendment 77 does not do that. Our amendment 312 did do that. So the problem we have here is that, because of that discrepancy between amendments, the minister can direct that the later bodies can have access to cultural information against the wishes of traditional custodians.Apart from this omission, the government's amendment would be acceptable to us. Our N45 makes the minister's power to give directions under 203FC subject to the wishes of traditional custodians of such knowledge. That brings the government's amendment in line with opposition 312 which was passed by the Senate and by the House of Representatives at the end of last year. It is an important amendment. It pays due recognition to the custodians of this knowledge and, as such, still deserves support in this parliament.18:19:002418Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—The government has no objection to that amendment.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—The question is that the amendment moved by Senator Bolkus to the government amendment 77 be agreed to.Question resolved in the affirmative.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—The question now is that the amendment, as amended, be agreed to.Question resolved in the affirmative.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—I put the question that amendments 77A through to 81, including 78, be agreed to.Question resolved in the affirmative.18:20:002418Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I move:(1) Clause 2, page 1 (line 9), omit "Part 1 of".(2) Clause 2, page 2 (line 1), omit "Part 1 of".(3) Clause 2, page 2 (lines 5 to 9), omit subclause (4).(272) Schedule 3, item 1, page 226 (lines 5 to 7), omit the definition of transition period .These amendments remove the formal transition period. Senator Margetts has done so much of the running on this that it is about time I shouldered some of the burden. I thank her for that.18:20:002418Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I simply indicate that the government opposes the package of Greens and Democrat amendments for the reasons outlined last November-December. We do believe we have the balance right with respect to the provisions relating to representative bodies. Our amendments do significantly augment their role and function but do balance that with an appropriate accountability regime. So we think the bill gets it right with the amendments we have just adopted and I record our opposition to the package of amendments.Amendments not agreed to.18:22:002419Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—According to my information, the amendments 272, 275, 278, 290, 282, 282, which are most of these, are consequential on Greens-Democrat amendment 277, which is to delete section 203AA, so we need to do that first.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—That is in order, Senator Woodley. The question is that schedule 3, item 11, section 203AA stand as printed.Question resolved in the affirmative.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—We are now moving back to that column 273. I put the question that schedule 3, items 2 to 10, 14 to 20, 22, 24 and 29 stand as printed.Question resolved in the affirmative.18:23:002419Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I move:(276) Schedule 3, item 11, page 230 (after line 25), at the end of section 203A, add: (5) An invitation for an application under this section must not be made for an area for which there is already a representative body except with the consent of that body. (6) The Commonwealth Minister must, as soon as is reasonably practicable, invite applications under this section in relation to areas of land or waters to which this Act extends and for which there is no representative body.This amendment will require the Commonwealth minister, as soon as is reasonably practicable after the commencement of the provision, to invite applications for the recognition of representative bodies with respect to areas where none currently exist. We believe this is an important amendment and I commend it to the committee.Amendment not agreed to.18:23:002419Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I move:(284) Schedule 3, item 11, page 238 (line 26), at the end of subsection (3), add: However, the body must not allow access to or transfer documents or records that are the subject of legal professional privilege or copyright, or of knowledge owned, according to traditional law and custom, by a third person, without: (a) for privilege, copyright or knowledge of a third person—the consent of the third person; or (b) for privilege or copyright of the body—the consent of the body.This amendment prevents the transfer of documents from an old representative body to a new representative body where the documents are the subject of legal professional privilege, copyright or are owned by a third person in accordance with traditional law and custom without the consent of the relevant person.18:25:002419Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—Government provisions and amendments do cover exactly this amendment and what is sought here in a manner which, I think it would be agreed, is in the form proposed by the Democrats. I suggest Senator Woodley need not move that motion.18:25:002419Bolkus, Sen NickSenator BOLKUSXE4SAALP00—The amendment accepted by the government, which was moved by myself, in fact does what Senator Woodley is trying to do.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Senator Woodley, you could withdraw that if you wish.18:26:002419Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I am happy to accept the advice of the committee.Amendment—by leave—withdrawn.Amendments (by Senator Woodley) not agreed to:(281) Schedule 3, item 11, page 235 (after line 31), at the end of subsection (1), add: ; and (e) the body will satisfactorily protect the interests of native title holders and other indigenous people interested in particular land within the area.(294) Schedule 3, item 30, page 250 (line 19), at the end of subsection (1), add: ; (h) to satisfactorily protect the interests of native title holders and other indigenous people interested in particular land or waters within its area.(308) Schedule 3, item 30, page 260 (lines 2 to 33), omit section 203BJ, substitute: 203BJ Other functions (1) The functions of representative bodies set out in this section are in addition to those referred to in sections 203BB to 203BH. (2) A representative body may, whenever it considers it necessary in the performance of its functions, consult with Aboriginal or Torres Strait Islander communities that might be affected by the matters with which the body is dealing. (3) A representative body must, as far as is reasonably practicable: (a) provide a process for registered native title bodies corporate, native title holders and persons who may hold native title to seek review by the representative body of its decisions and actions, made or taken in the performance of its functions or the exercise of its powers, that affect them; and (b) publicise that process appropriately; and (c) enter into written arrangements with other representative bodies so that the representative body can exercise its facilitation and assistance functions in relation to a matter of a kind referred to in paragraph 203BD(a) or (b); and (d) identify persons who may hold native title in the area for which the body is the representative body; and (e) take such action as the body considers appropriate to promote understanding, among Aboriginal people and Torres Strait Islanders living in the area, about matters relevant to the operation of this Act; and (f) inform such of the following as the representative body knows are, in relation to the area: (i) registered native title bodies corporate; (ii) native title holders; (iii) persons who may hold native title; of any matter that the representative body considers may relate to, or may have an impact upon, native title in the area; and (g) co-operate with other representative bodies for the purpose of promoting the effective and efficient exercise of the functions and powers of representative bodies; and (h) use its best endeavours to protect the interests of native title holders with respect to land or waters within its area; and (i) use its best endeavours to protect the interests of indigenous people interested in particular land or waters within its area.(296) Schedule 3, item 30, page 252 (line 19), at the end of subsection (1), add: ; (vi) land management and environmental issues.(297) Schedule 3, item 30, page 253 (lines 4 to 19), omit subsection (4), substitute: (4) If a registered native title body corporate or a person who holds or may hold native title (the requesting party ) requests that a representative body provide financial or other assistance so that a third person can perform functions similar to facilitation and assistance functions for the requesting party, the representative body must not provide the assistance unless it is satisfied that: (a) it would be unable to perform its facilitation and assistance functions for the requesting party because it is performing those functions for another body or person with whom the requesting party is in dispute or has a conflict of interest, and the representative body is unable to deal with the matter by performing its dispute resolution functions; or (b) it cannot adequately and efficiently perform its facilitation and assistance functions for the requesting party.(298) Schedule 3, item 30, page 254 (line 5), after "must", insert ", as far as is reasonably practicable".(299) Schedule 3, item 30, page 256 (line 8), at the end of subsection (1), add: ; and (c) to certify, in writing, agreements made pursuant to paragraph 31(1)(b) relating to areas of land or waters wholly or partly within the area for which the body is the representative body.(300) Schedule 3, item 30, page 256 (line 18), at the end of subsection (2), add: ; and (c) the application satisfies the requirements of section 190B and subsection 190C(2).(301) Schedule 3, item 30, page 257 (lines 6 and 7), omit "(2)(a) and (b)", substitute "(2)(a), (b) and (c)".(302) Schedule 3, item 30, page 257 (after line 11), after subsection (4), insert: Statement to be included in certification about merits of the claim etc. (4A) A certification of an application for a determination of native title by a representative body must: (a) include a statement to the effect that the representative body is of the opinion that each of the requirements of section 190B and subsection 190C(2) have been met; and (b) briefly set out the body's reasons for being of that opinion.(303) Schedule 3, item 30, page 257 (line 22), at the end of subsection (5), add: ; and (c) if a representative body for the area was not a party to the agreement, consultation took place in accordance with subsection 24CD(7).(304) Schedule 3, item 30, page 257 (after line 31), at the end of section 203BE, add: Certification of section 31 agreements (7) A representative body must not certify an agreement under paragraph (1)(c) unless it is of the opinion that: (a) all reasonable efforts have been made 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; and (b) all the persons so identified have authorised the making of the agreement. (8) A certification of an agreement under paragraph (1)(c) by a representative body must: (a) include a statement to the effect that the representative body is of the opinion that the requirements of paragraphs (7)(a) and (b) have been met; and (b) briefly set out the body's reasons for being of that opinion.(305) Schedule 3, item 30, page 259 (after line 18), at the end of section 203BG, add: (2) In considering what is reasonably practicable for the purposes of subsection (1), a representative body may take into account the resources available to it and any determination made by it in relation to the allocation of those resources. (3) The notification functions of a representative body are not intended to derogate from, diminish or impair in any way the obligations imposed under this Act on a government, Minister or other person to give notices. (306) Schedule 3, item 30, page 259 (line 22), after "area", insert "agreement".10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—The question is the schedule 3, item 30, section 203BI stand as printed.Question resolved in the affirmative.Amendments (by Senator Woodley) not agreed to:(309) Schedule 3, item 30, page 261 (lines 20 to 26), omit subsections 203C(2) and (3), substitute: (2) ATSIC must make grants of money to the representative body in respect of the period to which the body's strategic plan relates. Grants must be paid from money appropriated for the purposes of ATSIC.(310) Schedule 3, item 30, page 265 (line 17), omit "the Minister", substitute "ATSIC".(311) Schedule 3, item 30, page 266 (line 15), omit "CommonwealthMinister ", substitute "ATSIC ".(312) Schedule 3, item 30, page 266 (line 17), omit "the Commonwealth Minister", substitute "ATSIC".(313) Schedule 3, item 30, page 266 (line 19), omit "CommonwealthMinister ", substitute "ATSIC ".(314) Schedule 3, item 30, page 266 (line 20), omit "the Commonwealth Minister", substitute "ATSIC".(315) Schedule 3, item 30, page 267 (line 15), after "must", insert ", if required to do so in writing by ATSIC,".(316) Schedule 3, item 30, page 268 (lines 5 to 10), omit subsection (1), substitute: (1) A representative body must, in respect of each financial year: (a) prepare a report of the operations of the body during that year, together with financial statements in respect of that year; and (b) give the report and the financial statements to ATSIC as soon as is reasonably practicable but, in any event, before the end of the next financial year.(318) Schedule 3, item 30, page 268 (lines 18 and 19), omit "the Commonwealth Minister", substitute "ATSIC".10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—The question is that schedule 3, item 29, sections 203DF, 203DG and 203DH stand as printed.Question resolved in the affirmative.18:28:002422Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I move:(290) Schedule 3, item 25, page 246 (lines 25 and 26), omit paragraph (4)(a).(291) Schedule 3, item 25, page 248 (lines 29 and 30), omit paragraph (4)(a).As you will notice, unless someone wants an explanation, I am not giving explanations because these amendments were moved last time.Amendments not agreed to.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—The question is that schedule 3, item 30, division 6 stand as printed.Question resolved in the affirmative.Amendments (by Senator Woodley) not agreed to:(322) Schedule 3, item 31, page 276 (line 9), before "irregularities", insert "serious and repeated".(322A) Schedule 3, item 31, page 276 (line 27), before "irregularities", insert "serious and repeated".(323) Schedule 3, item 31, page 276 (line 34), omit "ATSIC must comply with the request.".(324) Schedule 3, item 31, page 276 (after line 34), at the end of section 203FA, add: (2) Subject to subsection (3), ATSIC must comply with the request. (3) If information or documents have been provided to ATSIC on a confidential basis, ATSIC must not comply with the request until it gives the person who provided the information or documents an opportunity to consider whether the person wishes the information or documents not to be disclosed on the basis of privilege from disclosure existing under the law. If the person informs ATSIC that the person wishes the information or documents not to be disclosed on that basis, ATSIC must not comply with the Commonwealth Minister's request.(325) Schedule 3, item 31, page 278 (after line 16), at the end of section 203FB, add: No judicial review of representative body decision (9) The Aboriginal person or Torres Strait Islander affected by the decision of the representative body is not entitled to take proceedings for judicial review of that decision. Note: Judicial review of ATSIC's final decision would be available.(326) Schedule 3, item 33, page 279 (after line 16), after subsection (2), insert: (2A) Before making a grant under subsection (2), ATSIC must be satisfied that committing additional funds to persons in the area concerned is justified having regard to: (a) the strategic plan of the representative body concerned; and (b) any determination by that body about priorities in the performance of its functions.Sitting suspended from 6.30 p.m. to 7.31 p.m.19:31:002422Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I move:Right to negotiate process(38) Schedule 1, item 9, page 79 (line 20), omit ", a right to fossick or a right to quarry", substitute "or a right to fossick".(39) Schedule 1, item 9, page 81 (line 5), omit "identification and protection", substitute "protection and avoidance".(40) Schedule 1, item 9, page 87 (lines 7 to 10), omit subsection (5A), substitute:Fourth condition(5A) The fourth condition is that the Commonwealth Minister is satisfied, immediately before the determination is made, that mining for opals or gems is being carried on in the whole or a substantial part of: (a) if paragraph (b) does not apply—the area; or (b) if, immediately before the determination is made, any part of the area is an approved opal or gem mining area—so much of the area as is not already an approved opal or gem mining area.(41) Schedule 1, item 9, page 88 (after line 11), after paragraph (2)(a), insert: (aa) the earlier act took place after the commencement of this section; and(42) Schedule 1, item 9, page 93 (line 2), after "Notice", insert "to the public under subsection (3)".(43) Schedule 1, item 9, page 94 (after line 18), at the end of section 30, add:Replacing a native title party (4) If: (a) a person becomes a registered native title claimant because the person replaces another person as the applicant in relation to a claimant application; and (b) the other person is a native title party; the first-mentioned person also replaces the other person as the native title party.(44) Schedule 1, item 9, page 99 (after line 23), at the end of section 35, add:Negotiations for an agreement (3) Even though the application has been made, the negotiation parties may continue to negotiate with a view to obtaining an agreement of the kind mentioned in paragraph 31(1)(b) before a determination in relation to the act is made under section 34A, 36A or 38. If they make such an agreement before such a determination is made, the application is taken to have been withdrawn.(45) Schedule 1, item 9, page 113 (lines 7 to 10), omit paragraph (3)(b), substitute: (b) if, at the end of 180 days after doing so, the alternative provisions do not comply and subparagraphs (c)(i) and (ii) do not apply—in writing, revoke the determination made under paragraph (1)(b); and (c) if: (i) at the end of 180 days after advising the State Minister or Territory Minister, the alternative provisions do not comply and the Commonwealth Minister is satisfied that the State Minister or the Territory Minister is using his or her best endeavours to ensure that the alternative provisions will comply; and (ii) before the end of the 180 days, the Commonwealth Minister determined in writing that a further period should apply for the purposes of this paragraph; and (iii) at the end of the further period, the alternative provisions still do not comply; in writing, revoke the determination made under paragraph (1)(b). Note: A determination mentioned in subparagraph (c)(ii) is a disallowable instrument: see section 214.(46) Schedule 1, item 9, page 116 (lines 7 to 10), omit paragraph (6)(b), substitute: (b) if, at the end of 180 days after doing so, the alternative provisions do not comply and subparagraphs (c)(i) and (ii) do not apply—in writing, revoke the determination made under paragraph (1)(b); and (c) if: (i) at the end of 180 days after advising the State Minister or Territory Minister, the alternative provisions do not comply and the Commonwealth Minister is satisfied that the State Minister or the Territory Minister is using his or her best endeavours to ensure that the alternative provisions will comply; and (ii) before the end of the 180 days, the Commonwealth Minister determined in writing that a further period should apply for the purposes of this paragraph; and (iii) at the end of the further period, the alternative provisions still do not comply; in writing, revoke the determination made under paragraph (1)(b). Note: A determination mentioned in subparagraph (c)(ii) is a disallowable instrument: see section 214.(47) Schedule 1, item 50, page 143 (lines 11 to 20), omit subsection (3), substitute:Areas in the Northern Territory (3) Subject to subsection (4), a particular area in the Northern Territory is a town or city if, as at 23 December 1996, it was: (a) gazetted as a town (other than the town of Darwin, Hatches Creek, Brocks Creek, Burrundie or Urapunga) under subsection 95(1) of the Crown Lands Act of the Northern Territory; or (b) the area in the Schedule to the Darwin Lands Acquisition Act 1945 of the Commonwealth; or (c) within a municipality constituted under section 29 of the Local Government Act of the Northern Territory.Government amendments Nos 38 to 47 result from our discussions about this whole set of provisions over the four months that have intervened since our last debate. In response to concerns expressed about the potential impact of quarrying on native title rights and interests, government amendment No. 38 will ensure that quarrying cannot be excluded from the right to negotiate under section 26A. Thus, section 26A will provide only for the removal of exploration, prospecting and fossicking rights from the right to negotiate.Section 26A is also amended by government amendment No. 39 to take account of indigenous concerns about the identification of sites of significance. The amendment will mean that consultations that take place once a section 26A determination has been made can be about the avoidance of sites of significance, not necessarily their identification.Government amendment No. 40 is to section 26 of the bill. Section 26C excludes from the RTN certain acts relating to opal or gem mining that take place in an area determined by the Commonwealth minister to be an approved opal or gem mining area for the purpose of this section. One of the matters the minister must be satisfied of before he or she determines an area to be such an approved area is that mining for opals or gems currently takes place in that area. Government amendment 40 ensures that these areas cannot be arbitrarily expanded by requiring where it is proposed to increase the boundaries of an approved opal or gem mining area that opal or gem mining must already be occurring in the additional area.Government amendment No. 41 is to subsection 26D(2), which provides for mining acts to be excluded from the RTN, if they were the subject of an RTN agreement or determination made at the exploration stage. The amendment makes it clear that the exclusion only applies where the agreement is made after new section 26D commences. The amendment is based on an amendment of Senator Harradine's that was made by the Senate last year. The Harradine amendment, with which the government agreed in principle, was not included in the bill as it contained a technical drafting deficiency.Government amendment No. 42 will restrict the capacity to give notice of more than one act in a single notice in the public notice provisions. Government amendment No. 43 is a consequential amendment required because new section 66B will provide that a native title applicant may be replaced by another member or members of the claim group. The amendment provides that the new applicant will also replace the old applicant as a native title party if there is an RTN process under way.Amendment No. 44 is to section 35 of the bill. It allows negotiations to continue once an application for a determination has been made to the arbitral body. If an agreement is reached before the arbitral body makes a determination in relation to the application, the application to the arbitral body is taken to be withdrawn. The amendment is based on an opposition amendment to section 35, made by the Senate last year. We accepted that in the House of Representatives, but that amendment was not included in the bill because it contained some drafting deficiencies, which this amendment fixes up.Amendments Nos 45 and 46 deal respectively with situations where an alternative state or territory regime approved under section 43 or 43A of the act is amended so that it no longer satisfies the criteria set out in those provisions, and that is obvious in those amendments. Government amendment No. 47 is similar to the amendment moved by the government in the Senate in December last year to correct a drafting error in the definition of towns and cities in so far as it relates to areas in the Northern Territory.This amendment is essential to ensuring that an area is a town or city for RTN purposes only if it would have fallen within the relevant descriptions as at the date of the Wik decision. The amendment removes certain areas from the definition of towns and cities in so far as it relates to the Northern Territory. Those areas are Hatches Creek, Brocks Creek, Burrundie and Urapunga. Information supplied by the territory government indicates that these areas should be excluded from the definition because they remain undeveloped. I commend those amendments to the Senate.19:35:002424Bolkus, Sen NickSenator BOLKUSXE4SAALP00—This is obviously the most critical part of the debate. As we put on the record quite clearly last time, and as we are prepared to do again this time, native title is nothing without the right to negotiate. The government's measures here will reduce an effective right to negotiate to some six to eight per cent of Australia. The main provisions that do that are the government's provisions which repeal division 3 of part 2. They affect the right to negotiate in two ways. Firstly, it is excluded from many areas of land and activities. Secondly, the actual process is eroded, undermining the ability of native title holders to protect their rights and interests. The government's amendments undermine the policy underpinning the right to negotiate and native title.As we said last time, Labor's position retains much of the existing right to negotiate. It gives it some flexibility in a fair and non-discriminatory way. The opposition's proposal, once again, as we said last time, is one of balance. We do attempt to provide native title holders with a fair process which affords them substantive equality. To the extent that we tried to do that last time and failed, most of the amendments we moved are actually being moved, once again, by the Democrats and the Greens. To the extent that they reflect our position of last time, we will support them.The great thing about the right to negotiate under this Native Title Act is that, despite all its detractors, it does provide a process that is contained and has a time limit. It is one that, because of the processes and the way that those processes are driven, provides certainty at a much earlier stage than would otherwise be available under the common law.We maintain very strongly that the right to negotiate, as proposed by the opposition, as is reflected in the act, is not a right of veto. It provides for the protection of native title, but it also provides for a fair process for resource development in Australia. To the extent that there have been problems with it—let me put this squarely to the government—the threshold test, the registration process, the claims process and the evidentiary provisions all add up to an enormous barrier that native title claimants have to pass before they can pursue their interests in their claims.The right to negotiate is restricted in its application to mining activity and the compulsory acquisition of native title for the purpose of granting an interest in land to non-government parties. But it has got to be said that the provisions passed by the Senate last time and added to this time make it quite evident to stakeholders, I am sure, that their concerns as to fraudulent claims, overlapping claims, have all been met—in fact, more than met—by the government in its legislation; legislation we have tried to amend and continue to try to amend because we feel it went too far.In respect of this current debate, we are still committed to the right to negotiate. We are committed to it for constitutional reasons and to ensure conformity of the Native Title Act with the Race Discrimination Act, with the just terms of the constitution and with the races power of the constitution as it may finally be interpreted by the High Court. You cannot take away people's rights and interests, firstly, without doing it in a non-discriminatory way and, secondly, without providing adequate compensation both in terms of finances and process. The government, we maintain, has failed in both.In the 1993 package the right to negotiate did provide a balance which, as I said earlier, ensured a process. The government's amendments greatly diminish the benefits of the rights to negotiate and those benefits that it provides to native title holders. They expose state and territory land administration to ongoing uncertainty and, as importantly, expose Australia to international condemnation for offending the Convention for the Elimination of Racial Discrimination. This is one of those areas which was identified by the government's senior legal adviser as being discriminatory.Let us get to the core of this. What the government does do in its approach is disregard the cultural nature of native title and the spiritual attachment of native title holders to land. Its approach is based on long discredited theories of assimilation. The government's bill removes, for instance, the right to negotiate from all but a sliver of the Australian continent. Even with major mining projects where lands happen to have been subject to a pastoral lease or reserve 100 years ago, state and territories can replace the right to negotiate with procedures under mining legislation. There will be resort to injunction, there will be resort to the courts. I can guarantee here that the government will have to put a lot more resources into the tribunal and court system because, through these, measures the government is forcing people out of the right to negotiate process under the Native Title Act.When one talks about the right to negotiate as an aspect of native title, one is talking about the real spirit and the heart of native title. One is talking about human beings expecting—in fact, in this case demanding—to be treated not as cattle which can be moved around properties, but as human beings who need to be respected and whose rights, customs and culture need to be respected. These people need to be respected as equals in our society.So we pursue the position we pursued last time. We say that, in relation to the registration test, the Senate provisions have gone too far. We will be moving to discuss a whole range of areas in respect of private infrastructure, the application of the right to negotiate, towns and cities, conjunctive agreements, injunctions and so on. In terms of our amendments with respect to private infrastructure, a concern was raised with us—in fact it was raised by the Queensland Minerals Council—that the position we were taking was one that they felt had direct and indirect consequences which made it difficult for them to proceed with some projects.We worked on an amendment to see whether we could accommodate a certain level of private infrastructure as part of a public purpose test. We worked on an amendment which provided for the compulsory acquisition of native title rights and interest if the dominant purpose of the acquisition was to confer rights through interest in relation to the land or waters concerned on persons other than the government party. We promised to do that. We have met, I must say, with universal opposition in this place from government and other parties. One of the major concerns that people raised was that the concept of dominant purpose is one that would be very hard to define and hard to protect against legal challenge. We have tried, and I must say we did expect a better response, a bit more constructive response, from some quarters, but not having got that we are not proceeding with that particular proposal.I will leave the rest of the debate to go section by section. I will say at this particular stage that we do not think there should be a need for government amendments 46 and 47 because, for instance, in respect of towns and cities, we still find that distinction artificial and unacceptable for good reasons which we will expound later on. Amendments 46 and 47 form categories of amendments which we think will not be necessary. But we see the rest of them as being incremental advances.As I said, this is a critical part of the debate. There are 17 or so different areas under it. I will leave specific comments until the amendments come up in those areas.19:44:002426Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—Senator Bolkus is right—this is the critical issue. In the end, if there is no right to negotiate then there is no native title. Let us underline the fact that what we are talking about is not a veto, it is not giving native title claimants the opportunity to hold up development, as is constantly stated, but it is simply saying people ought to talk to one another. It seems to me to be a fairly simple proposition, but one that this government seems to have great difficulty with.I want to address a couple of the reasons given by the government as to why there should not be a right to negotiate for native title holders that has any meaning. The government will protest that it does believe in the right to negotiate. But as Senator Bolkus has said, that right to negotiate now has so many hurdles in front of it, and there are more hurdles proposed in this particular section, that one really cannot take the government seriously again.One of the reasons the government gives for saying there cannot be a right to negotiate for native title holders is that all claimants should be treated equally. The government then says, `Well, farmers do not have a right to negotiate with miners, so Aboriginal people shouldn't have.' I have to say to you that he is dead right in the sense that farmers do not have a right to negotiate with mining companies, and that is a great problem for them. One of the issues in Queensland that I have lived with, for as long as I have lived with the whole issue of Aboriginal rights, is the problem that farmers have with mining companies. Tonight, I am going to put a couple incidents on the record so that you can understand this.One of them is a very long-running dispute which started in 1974 and 1975 in Central Queensland when a large number of dairy farmers discovered that, because their farms were on what were entitled mining homestead leases, in fact they had no rights to that land that they had been farming on, in some cases for three generations. It was not until after 12 months of harassing a National Party government that someone from the government finally came and talked to them, and it was the mines minister. I went to that meeting. He spent the whole meeting abusing them and saying to them, `Get out of the road, progress demands that we have cement. We need the limestone on your farms for cement and that is just too bad.'Finally, because they got together and they worked as a group, these farmers were able to raise money. They were told that if they went to the mining warden's court and put their case, then that would be their opportunity to be heard. So they did that and they spent five days in the mining warden's court. They raised at the time—this was 1975—about $9,000 to get legal advice. I do not know what that equates to today, but it is a fair amount of money. So they were heard and they spent five days putting their case.They were then told that the magistrate would reserve judgment, as is usual in these cases, and that they would get judgment within a few weeks time. A day before the mining warden was to give his judgment, the state government came out with a statement which said, `Sorry farmers, the mining warden's court is simply an advisory body to the government. There is no report going to released. The mining leases are granted.' That is the kind of justice that farmers have had from mining companies.But it does not end there. My friend Senator Boswell would probably come and tell me that that is history. Let me tell you that the situation obtains right up to the present day. One of the strong arguments that the farmers put in this case was that engineering reports said that if quarrying of the limestone took place on the farms—and finally it did—it was likely that the limestone right across the area would be fractured and they would lose their water.Today, there is a further dispute going on, because most of the farms around that mining area that still remain now find that the water table is four metres below where it was before mining started, which means of course that it is very difficult for them to get water for their stock, et cetera. So they are still in dispute with the mining company, and the state government is still not listening to them. Do not tell me that Aborigines have to have the same right to negotiate as farmers with mining companies. Farmers have not got any right to negotiate. This is what happens to farmers when they are faced with this kind of activity.Let me give you a couple of other examples. The Queensland grain growers have been in dispute with some of the coal mining companies in Central Queensland for some years over the fact that much of the mining activity in Central Queensland, because of subsidence, has ruined much of the farming and grazing areas. They, too, have not been able to get justice, and so the story continues.So, Minister, if you are saying that Aboriginal people should have the same right as farmers to negotiate with miners, then I am afraid there is not much hope for anybody. In the second reading debate before Christmas I pointed out to the government that it is within their hands to correct this, not by taking away rights from Aboriginal people but by giving farmers some justice in their attempts to negotiate with mining companies. According to advice from the Parliamentary Library and the Table Office, if the government wants some equality, it can actually give farmers a right to negotiate.There is a device, there is a means of giving farmers a right to negotiate. It is the government's job—they are the friends of farmers, they always tell us—and I will supply that information if they want it. Let them go and bring in amendments to other legislation in this place that will restore a right for farmers to negotiate with mining companies, because I can tell you they sure need it.So what we are faced with tonight is again an absolutely critical issue. Without the right to negotiate, there is no native title. Without a proper right to negotiate, without some of the hurdles that Aboriginal people have to jump taken out of the way, that right to negotiate is a joke. I hope the Senate will be minded to vote for the opposition amendments and the Democrats-Greens (WA) amendments, which seek to improve the right to negotiate and give native title holders some hope of getting at least this opportunity to talk to those who seek to mine and in other ways interfere with their rights.19:53:002428Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—One of the measures of the community importance of the right to negotiate might be the fact that in 1997, when we dealt with this bill, dozens of amendments were passed. In fact 44 amendments were passed, and only six amendments did not pass that we are potentially still dealing with. A lot of issues got the support of the Senate at the end of last year.It is important that I state what I would be aiming to do here. I would be aiming to remove the whole of the division, to move back to the Native Title Act 1993 provisions—that is, to hold the line. I would be seeking to hold the line of the amendments which passed last time, or a selection of those at least. We will be raising again the importance of the right to negotiate issues, which were in fact defeated in 1997.There was a lot said about this issue last year, but I think it is recognised that the right to negotiate effectively recognises the unique spiritual nature of, and provides an essential minimum level of protection for, native title. It has been mentioned that the right to negotiate, as it was agreed in 1993, was a trade-off. We know that it was a trade-off for what could well have been established in common law rights; it was a trade-off that allowed for the so-called certainty of just about every other land-holder and land title in the country.The right to negotiate is now very much under threat, and that also threatens, as we have heard by a range of opinions. The rustle of silks on the Senate Legal and Constitutional Committee were given opinions by a whole range of experts in the field, and a number of those experts suggested that the trade-off in 1993 would have been one of the few areas where it could have been argued that the 1993 act would pass as a special measure that was beneficial for Aboriginal people. If you largely removed that or removed substantial areas of that, it was argued—and I think very cogently—that it is very hard to argue that even the 1993 act was a special measure any more, because you pulled out that point where there was a potential trade-off between the rights of other land-holders and some form of recognition of what can be enjoyed under a legislative native title right.The right to negotiate also deals with a backlog in the determination of native title. If the courts and the tribunal are not able to handle these cases quickly, there needs to be some means by which people can enjoy native title. The courts and the tribunal are clogged as a result of the failure of Australian governments to protect indigenous rights in the past, and this was mentioned very effectively by Senator Woodley earlier in the day. You can hardly point to indigenous Australians, with 210 years of dispossession, and say, `It's your fault these cases are clogging up the courts. It's your fault it's difficult to sort out the intricacies of these issues.' The backlog was the result of a lack of acknowledgment over time of existing common law or native title rights. The right to negotiate addresses this problem, we believe, in a balanced way by providing for the interests of resource developers and those, as yet, undetermined native title holders, who can only access the right to negotiate after lodging a claim and passing a threshold test.The expedited procedure is the existing procedure. Activities such as exploration can bypass the right to negotiate through an expedited procedure which removes the right to negotiate if the activity does not directly interfere with community life, areas or sites of particular significance or involve a major disturbance to any land or waters. We believe the right to negotiate already favours resource developers because the right to negotiate procedure cannot be used as a veto on resource development. To the contrary, it favours resource development. Quite frequently, we have heard in this debate that somehow or other an agreement with a time limit is a veto, and of course it is not. We know there are processes and there are time limits on all of those processes, and basically there will be a decision within those processes. Of course, access to the right to negotiate does not arise until the claim is accepted, probably close to two months after receipt of the notice. The periods for negotiation are really two and four months respectively. Negotiations over mining to date have covered such matters as restrictions on employees shooting wildlife or disrupting social life in nearby indigenous communities, the protection of sacred sites, job opportunities for local indigenous people and other benefits in cash and kind. The potential effect on these provisions and operating costs ranges from negligible to the equivalent of a small increase in royalties. This is not going to bring the country down. If you do not provide this, if you like, pressure release, then I do not think negotiations at a later date are going to be particularly amicable. It is certainly not going to lead to anything vaguely akin to reconciliation. I mentioned at the end of last year the areas the government has excluded from the right to negotiate. I will remind honourable senators of what they are. It is the upgrades to full primary production on pastoral leases; the right to negotiate for off-farm activities connected to full primary production; the right to negotiate when third parties are granted the right to remove forest and quarry for sand, soil and rocks on pastoral leases; the management and regulation of water, air space and offshore places; and negotiating towns and cities.It also excludes the right to negotiate on certain lease renewals, extensions and upgrades in relation to reservations and the provision of facilities that service the public, and that could be as broad as the governments want it to be. It excludes the right to negotiate on mining exploration for gold and tin mining, for opal and gems, for the renewal of valid mining leases, for the right to negotiate on the intertidal zone, as well as basically effectively excluding the right to negotiate on pastoral leases and other leased or reserved areas by allowing state and territory bodies to provide cursory alternative provisions. We have argued this before. I hope that the ALP are going to hold the line on all of these issues where they voted in 1997. I want to make it clear that I will not be seeking to move all of the Greens-Democrats amendments that were moved at the end of last year, but I might run through a few of those areas now for the benefit of the committee. I will be moving amendments 170 and 258. They are to restore the right to negotiate on infrastructure facilities. This was supported by the ALP. They are moving identical amendments. Amendment 188 was also identical to the ALP's amendments and does something similar. Amendment 185 restores the right to negotiate in towns and cities. Amendment 110 was to restore the right to negotiate to exploration acts. Amendment 111 restores the right to negotiate to alluvial gold and tin mining.Amendments 114 to 116, 120 and 124 were supported last time by the ALP. That includes providing for the exclusion of the right to negotiate by reason only of earlier agreement that there would be no further negotiations at the production stage and inserts a new subsection 26D(1)(a) which states that the section does not apply where the original lease is the creation of a right to mine. Amendment 120 provides a mechanism to ensure governments follow the future act provisions by allowing a native title claimant to apply to the Federal Court to stop an act which should have gone through the right to negotiate process.We will also be moving amendment 127 which removes provisions enabling premature ministerial intervention and amendment 126 which permits an agreement to vary or replace a determination after a determination has been made. Amendment 135 allows a determination of financial conditions by an arbitral body and some parts of negotiation to be postponed by agreement for later determination. Amend ment 137 replaces the provision whereby the tribunal can consider the environment, which is where it was last time. So it was the criteria which could be considered in a native title determination. So the environment was there originally. We would like to see it put back. We would also like to see the ALP supporting it being put back, as the National Indigenous Working Group have asked us to do. I will be reminding the committee briefly in a quick argument each time of what those areas were, possibly longer when we get to the right to negotiate on pastoral leases.20:06:002430Murray, Sen AndrewSenator MURRAY3M6WAAD00—I wish to intervene in the debate at this stage because we are dealing with the last of the sticking points in this legislation. Late tonight and tomorrow the government is going to consider its response to the amended bill. In that response rests the destiny of this nation to some extent. I want to address this because, as a West Australian senator, I have been visited by numerous people from the mining industry, as you would expect. They are very nice people, but I have been somewhat surprised by their approach to the issues captured in this bill.By and large they have offered a view of the bill which involves a kind of political absolutism in direct contrast to the normal behaviour of business people, to whom negotiation, resolution and agreement are the very essence of business transactions. I have been startled that they have not encouraged the government to be a little more flexible and a little more accepting of some of the amendments and of the direction in which the Senate has gone.All parties, and I do not mean just political parties but all parties interested in this bill, have agreed that the management and processing of claims, improved threshold tests, more effective procedures and greater fairness and efficiency are desirable outcomes. Far too much has been said in the debate and in the media about the negatives surrounding this bill. Far too little has been said about the positives in those areas in which there is common agreement. There is a great deal of agreement about improving the management and processing of claims and threshold tests, more effective procedures and greater fairness and certainty. On those there is no quarrel from the indigenous groups, no quarrel from the political parties, no quarrel from the various interests. Those positive aspects of the bill would indeed have resulted in a diminution in the number of overlapping claims. That greater resolution of how matters are to be processed does not therefore need to be accompanied by an erosion of rights.One characteristic of modern industrial and corporate organisations is their resistance to limitation or restraint. The drive of the modern organisation is for development, expansion and growth, and some of those people see native title as an impediment to their economic agenda, which is measured by money and control. To those economic forces, the word `workable' means being capable of compliance with their growth and development imperatives, because economic forces like that are always in a hurry. Negotiation costs money, agreements place limits on operations, and logic dictates that negotiations and agreements should be made as quick, cheap and easy as possible. Every person in this place understands that that is their mentality. But an attitude of commercial opportunism and political absolutism should not be brought to bear on an issue of great national sensitivity .The problem for those who focus on the economic agenda is that the cultural, spiritual, historical and emotional attachment which is native title requires a different mind-set and attention to intangibles. It is the job of the government and of the Senate to reconcile those intangibles.The mining industry came to see me because they were alarmed at the level of claims which reached them. They have painted a picture, and rightly so, of the effect of those claims on their ability to operate. But they have not told the other side of the story. Before we all think that they are descending into doom and disaster, we ought to remind ourselves of just how well the mining industry has been doing in the year in which they say this escalation of claims has really hurt them badly. Some of the key performance indicators for last financial year, 1996-97, show that mineral exploration excluding petroleum was up 20 per cent over the previous year. Petroleum exploration was up 18 per cent over the previous year. The value of mineral production was up to $35,000 million, a 20 per cent increase since 1992-93. The value of mineral and energy exports has more than doubled since 1986-87 to a record $36 billion. Yet in the face of such fantastic growth, the industry has funded grossly misleading campaigns, fostering misinformation in the community about the disastrous impact of native title. I do not minimise the problems they face. But I think it is important that they begin to adopt, in these last hours in which compromise is possible, a rational and realistic approach and that they urge the government to be accepting of amendments which allow both the industry and native title to move forward.The problem has emerged in a different form. The West Australian, on 13 March 1988, under an exclusive article by someone called Leeroy Betti, led with this paragraph:A company headed by Perth businessman Ken Court paid for a native title claim lodged over parts of the massive An Feng Kingstream steel project, thousands of other mining tenements and 16 existing Aboriginal claims.It was followed up by an article in the Age on Monday 30 March 1998 by Janine Macdonald headed `Wheeling and dealing in the wild wild West', which pursued the same story. I will quote for you a couple of paragraphs:The Minerals Council of Australia also was surprised about the payment. A spokesman said it was the only one of which the council was aware.There have been 745 claims lodged since the tribunal was established but this was the only one of which the council was aware. That may be true. When the director, Mr Zuks, was questioned, this is what the article said:Zuks said other money was paid to Phillips but would not disclose how much or for what reasons, and he declined to say whether An Feng Kingstream had paid for Phillips legal representatives.You do not decline to say whether you have paid for somebody unless it might be true. I mean, the simple answer to the question is no.Mr Phillips is an Aboriginal person and a few hundred dollars was paid to him—that has been acknowledged in the article. But what happens if it starts to extend to legal representatives with all its ramifications? So the Australian Democrats, with our limited time and resources, have begun to ask questions of Aboriginal people from my part of the world and others.They tell us—and there is no way for us to ascertain whether or not it is true—that mining companies are known to pay for Aboriginal people to make claims. If that is so, this problem that the mining companies are saying exists—and we believe it does exist—may have partly, or even considerably, been contributed to by the mining companies themselves who, in their competitive role with each other, may have contributed the very things that the government says it has got to fix.I would have wished that the bill could have had a provision with a subpoena set into it whereby every claimant had to declare whether a mining or pastoral interest had paid for their legal representation or for their claims. We might discover that this great problem turns out to be a white fella's problem. I do not know whether or not that is so. All I can tell you is that, with respect to a company headed by Perth businessman Ken Court, from the Court dynasty, it was exposed as a problem.Because there is this murky, muddy, commercial undercurrent to this whole thing, I urge the participants in this debate, and the government, when it considers the bill in its final form, to cease political absolutism, to cease posturing, and to ensure that a flexible, tolerant and, indeed, careful view is taken of some of the claims and assertions being made by the commercial interests who are affected by the right to negotiate.20:17:002431Brown, Sen BobSenator BROWNQD4TASAG00—I hope the government was listening to that contribution from Senator Murray. I would like to follow up by referring to an article in the Canberra Times of August last year under the by-line of Gerard Noonan. The headline read: `$64b committed for minerals, in spite of Wik'. I quote from the article:You would certainly be forgiven for thinking that mineral exploration had ground to a halt in the wake of the High Court's Wik decision on native title last year.That's what every conservative government and red-blooded politician has been spouting for the past year. It's a refrain echoed by pastoralists through their political organisation, the National Farmers' Federation.So what explains the fact that there are such vast sums being spent on, or committed to, projects if there's such nervousness about who owns the digging rights and controls the spoils?The answer can only be that, despite all the hot air and fevered arguments in the lobbying forums of the country, the real world of outback mining and mineral processing is getting on with it.Mr Noonan then says:To get an idea of what the exploration and developmental spending looks like, here's how it adds up. (And remember, these are billions.)He then lists the following amounts: coal, nearly $5 billion; petroleum, $26 billion; uranium, $2 billion; iron ore, $3 billion; gold, $1 billion; and so on, down to a total of $65 billion in mineral exploration and mineral processing plants in Australia slated on the boards for the next three years.As Mr Noonan comments:It's hardly what you'd call stalled.The mining companies know exactly what is in this legislation; so does the National Farmers Federation. I want to take us back to the right to negotiate that we are dealing with here. It is not the right to negotiate per se, it is far from it; it is a shadow of that.What we are being asked to consider in this fourth sticking point provision is the right to negotiate over mines, over holes in the ground, over less than 10 per cent of the potential land uses across the country which are able to disrupt, change, transmogrify, the land of the indigenous people without their being able to have a say.Remember at the outset, as Senator Bolkus said and Senator Margetts repeated, that there is no right to veto here. Australians listening to this debate think it is all about the indigenous people having a right to knock out developments. It is not. There is no right to veto. There is a right to negotiate and come to an agreement, but there is no right to veto projects. That is agreed by all components in this debate. That is the first myth to be knocked out. The indigenous people have had that right taken away from them.The second thing, as I said, is that there is no right at all for indigenous people to negotiate on broadscale plantations, cotton crops, sea fisheries, oil derricks, wharves, roads, rail, dams, canals, irrigation projects, woodchip undertakings, tourism—Club Meds. There is a myth abroad that this right to negotiate gives the indigenous people on whose lands those functions might be slated in the coming century a say under this legislation. They do not.Not only do they not get that say under the Howard 10-point plan, but the horror of it all is that they do not get that say under Labor policy either, and they certainly do not get that say with Senator Harradine in the box seat. The only people who would give the indigenous people that right to a say are over in this corner occupied by the Greens and the Democrats.So there we have it: no veto right, less than 10 per cent, potentially, of developmental projects, over what Senator Bolkus says is six to eight per cent of the country. Less than 10 per cent of opportunity to have a say in less than 10 per cent of the country. If my sums are correct, from my teachers way back at Trunkey Creek Primary, the indigenous people have a say in less than one per cent of potential developments, and then they do not have a veto. That is if the legislation goes through as amended by the combined forces of the Greens, Democrats, ALP and Senator Harradine, because the government would give no negotiating rights at all on anything.The last lingering right for indigenous people to have a say on holes in the ground has been fought vociferously by the opponents of indigenous rights, not least the government. It is a key component of their bucket loads of extinguishment. Lest anyone think that we are debating broad scale empowerment of indigenous people, I point out that we are not. That has all gone. It has been done away with. That was voted down last night. What we are talking about is the ability to negotiate with no veto rights over mines in a very small component of the country. The proposed amendments are designed to take away rights over opal, gem, gold mining and so on.If we cannot get Senate assent to this are we setting ourselves up as a den of thieves, as a place that has engaged in the theft of the last little bit of the right to negotiate for indigenous people? That is the question. Senator Woodley said that if there is no right to negotiate then there is no native title. I agree with Senator Woodley. There is very little native title left in this legislation.Even if the government is not successful in blocking the right to negotiate for mining, there is very little native title left in terms of the ability of people who do get native title recognised to be able to have a say in what happens to their land. For goodness sake, it is a pretty pass. I say to all members of this committee: How could you not back these meagre morsels, these last crumbs of empowerment and the return of rights to the indigenous people of this country?10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Jacinta Collins)—The question is that government amendments 38 to 47 be agreed to. Is there any objection to those amendments being taken together.20:25:002433Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I indicated that we would not be supporting government amendments 46 and 47 at this stage because we felt that there would probably not be a need for them. If we can move all the other government amendments apart from 46 and 47, that would assist. One of those two amendments refers to the definition of towns and cities. I think we should determine what we do with towns and cities first before we determine whether we need the definition. The other amendment is in a similar category. If we leave those two out for the moment we can agree to the other government amendments at this stage.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Jacinta Collins)—The question is that government amendments 38 to 45 be agreed to.Question resolved in the affirmative.20:25:002433Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I might have to get that vote recommitted later.32:26:002433Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—The ALP are not opposed to those amendments.20:26:002433Bolkus, Sen NickSenator BOLKUSXE4SAALP00—Are we on to amendments 103 and 22 or are we still on Democrat-Green 100 and 102? According to the running sheet I have, the opposition does not have any under the first group. We do have some under the second one and we can proceed with those if you like.20:27:002433Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I thought Senator Margetts indicated that she was not going to move 100, 102 and 103.20:27:002433Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I indicated that I would not be moving Greens-Democrat amendments 100 and 102. I did indicate that I was not going to move amendment 103, but I lied. I did not mean to. It is similar to Senator Harradine's amendment No. 22. We believe ours is slightly wider and we would like our amendment to get up but we will not die in the ditch if Senator Harradine's gets up. I hand to Senator Harradine to indicate what he would like to do in relation to his amendment 22.20:28:002433Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I say to the committee that a stage has been reached now where I believe this bill cannot be salvaged and an outcome, which is just, reasonable and honourable, can be achieved. I was told half an hour ago that because of all of the negotiations—the very hard work that has been done by a whole range of people—there could be such an outcome. I believe at this stage of the evening that that is not possible. I will be having something more to say about that matter in the third reading stage. There is no point in me discussing it further at this point in time. I hope amendment 22 receives the support it received on the last occasion. I move:(22) Schedule 1, item 9, page 78 (lines 13 to 15), omit "and" and sub-subparagraph (B). 20:30:002434Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Very briefly, it basically gives the right to negotiate in relation to infrastructure projects brought about by third parties. I defer to Senator Bolkus.20:30:002434Bolkus, Sen NickSenator BOLKUSXE4SAALP00—We will support Senator Harradine's amendment 22 at this stage. There was a minor amendment that we were floating in respect of that. That comes up much later in the proceedings. It is important, I think, for the purposes of being able to proceed with that that Senator Harradine's amendment 22 is carried at this particular stage. We support it.20:31:002434Brown, Sen BobSenator BROWNQD4TASAG00—I would just like to comment on the information which Senator Harradine has given to the Senate. My interpretation of that at this stage is a totally intransigent and obdurate Prime Minister, a Prime Minister who wants to see this legislation either go through according to his own very limited and narrow perspective or not go through at all, a Prime Minister who has apparently decided that now is the time to have an election and that this is one of the issues upon which he will base that.Despite the efforts and good offices of Senator Harradine, who must have been through the mill on this issue, who must have been through some very trying times, despite all he could say and give—and I know we have given him stick in this place over that give—the Prime Minister has sat there on his little chair in his office, cut off from the wider community and said, `In my interests, this will go down unless the Senate totally capitulates, unless the wider views of the people totally go by the by.' What a small minded, narrow, self-invested Prime Minister we have! What a failure as the leader of this country. What a failure of vision and what a failure to be, as he promised at the last election, a Prime Minister for all Australians.I am sure Senator Harradine will have more to say on the third reading. So will all of us. But if that was the Prime Minister's viewpoint he should have said so at the outset. We have been fishing to get his point of view time and again through this debate. I read the words of Senator Harradine that way. If that is the case, then let the Prime Minister face history over that decision.20:33:002434Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I have been looking through some of the further amendments here. I think the committee needs to be apprised of the opposition position in respect of some aspects of section 26A, which Senator Harradine's amendment 22 goes to. For instance, in respect of the application of the right to negotiate in 26, opposition R114 inserts subsection (1A) to ensure notification as to whether the acquisition is for the purpose of granting an interest in a non-government party. I do not think we will need to proceed with that because obviously the numbers will not be there for it.I do not know whether we still have a debate as to towns and cities after this amendment is carried. Maybe the government can help us in respect of that. But we do have some amendments that go to the application of the right to negotiate in respect of approved insignificant impact exploration schemes. I do not think by carrying this Harradine amendment we actually preclude debate on that. I indicate that at some stage later on we will raise that issue. In recognising that the numbers probably will not be there, we will not be testing that. At this particular stage we support Senator Harradine's amendment 22.20:35:002434Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—Amendment 22 and related amendments are about the issue of whether or not the statutory right to negotiate process applies to infrastructure. The original Native Title Act provided that the procedural rights for future acts in respect of native title would generally be that native title holders are `entitled to the same procedural rights as holders of ordinary title'. I quote from the commentary in the act itself. What the act did was add on to that by giving a special right which ordinary title holders do not have and they called it the right to negotiate. Under this act it applies, as it says in the commentary, to mining and the compulsory acquisition of native title for the purpose of making a grant to a third party.Acquisitions of native title by governments for their own purposes are not covered by the right to negotiate. That was traditionally how infrastructure was provided. Increasingly, public infrastructure is provided or built or set up by the private sector on behalf of the public. We do have this anomaly now where major infrastructure projects done by the government do not have the right to negotiate, but if they are done by the private sector for the public they are then caught up in the right to negotiate process. So not only is it a significant anomaly, it is one which is causing significant difficulty for major infrastructure projects providing services to the public in remote areas of Australia.We believe that the basic foundation stone of the Native Title Act is—and it is a principle that we support—that native title holders should have the same procedural rights as the equivalent title holders. That is the foundation stone of the Native Title Act. We think in the case of private infrastructure that that is the appropriate set of procedural rights—that is, that native title claimants and holders affected by a private sector infrastructure project should have the same procedural rights as everybody else. That is what our bill provides.It is simply impractical for the extraordinarily complex and legalistically difficult right to negotiate process to apply with infrastructure, particularly where it involves pipelines and other infrastructure that can cover hundreds and hundreds of kilometres involving native title claimants all along the way. Unless they get agreement with every single one of them, they are into arbitration, et cetera. There are huge delays built into this quite extraordinary process that is affecting the provision of services to Australians, Aboriginal and non-Aboriginal, right across the country.So this is one area where we do think the original foundation stone of the Native Title Act should be restored—that is, that native title holders have the same procedural rights as everyone else and, at the same time, we remove the anomaly between public and private infrastructure that now exists.20:38:002435Murray, Sen AndrewSenator MURRAY3M6WAAD00—Just a brief intrusion: when I was advocating that mining companies should support the right to negotiate, I forgot to declare my interest in the matter. I am a trustee of a fund which has mining shares, and I thought that I should let you know.20:39:002435Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I will not speak for long because I believe that this amendment will be carried. Perhaps I am out of order in speaking now on this, but I would like to say that, in regard to government amendments 38 to 45—XE4BOLKUSSenator Bolkus—They have been carried.6H4Harradine, Sen BrianSenator HARRADINE—That is the point that I raise, that I had been otherwise engaged. I may have to move for those to be recommitted at the end of the debate in the committee stage. I would like to say whilst I am on my feet that—10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Chapman)—If that is your goal, you can do that now, by leave, after 22 is dealt with.6H4Harradine, Sen BrianSenator HARRADINE—Thank you very much. I appreciate that offer, but I have deliberately indicated that I will be considering the recommittal motion at the end of the committee stage. I want to indicate also that I made a statement to the committee. I did not want to delay the committee, but I did wish to indicate what my considered view was at that particular time. Through you, Mr Chairman, I must say to Senator Brown that I really do not believe it helps to advance the interests of Aboriginal people or the dignity of this place to impute motives to other people, including the Prime Minister. I must say that all of those people with whom I have had in depth discussions over a considerable time now have entered those discussions in good faith, with considerable courtesy and also with a good deal of knowledge. I am very grateful for that to the government and its advisers and, of course, to my advisers.20:41:002435Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I thought that the opposition indicated that it did not have an objection to 38 to 45. I do not know whether Senator Harradine was aware of that and, if that is correct, in those circumstances, whether Senator Harradine needs to recommit it.20:42:002436Bolkus, Sen NickSenator BOLKUSXE4SAALP00—The opposition said it did not have an objection to 38 to 45, but we are always prepared to listen to better arguments. We do not maintain that we get it right all the time. On that basis, I would be prepared to listen to Senator Harradine later on. This is an extremely complicated part of the bill and I am sure his arguments could very well be persuasive.Amendment (Senator Harradine's) agreed to.20:43:002436Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I move:(201) Schedule 1, item 34, page 133 (lines 11 and 12), omit "or paragraph (i) of the definition of infrastructure facility in section 253".(287) Schedule 2, item 78, page 216 (table), omit the item relating to infrastructure facility.The opposition has a further amendment to the bill—No. 221—in that we will be opposing schedule 1, item 57 on page 145. For some strange reason, these amendments are consequential to Senator Harradine's 22. They go to the definition of infrastructure facility in those three sections. Since Senator Harradine's amendment has been successful, there is a need for those consequential amendments to be made.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—The note I have identifies them as being identical rather than as consequential.XE4Bolkus, Sen NickSenator BOLKUS—They are identical with those of the Democrats-Greens (WA).Amendments Nos 201 and 287 agreed to.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—The question is that schedule 1, item 57 stand as printed.Question resolved in the negative.20:45:002436Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I have been looking at R114, which inserts subsection 1A into section 26 to ensure notification as to whether the acquisition is for the purpose.DX5MARGETTSSenator Margetts—I wrote down that we were not proceeding with that.XE4Bolkus, Sen NickSenator BOLKUS—I was just going to come to that. I suspect that now that we have done away with the substantive section we will not need to proceed with 114. The next that I have is in respect of exclusion of the right to negotiate from a land within a town or city—DX5MARGETTSSenator Margetts—It does not come up for a while.XE4Bolkus, Sen NickSenator BOLKUS—Which does not come up for a little while. So that basically means that the Democrats-Greens (WA) have some amendments they would like to move.20:46:002436Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I move:(109) Schedule 1, item 9, page 79 (lines 6 to 11), omit subsection (3), substitute: (3) If an act is covered by, or falls within a class of acts covered by, an alternative procedure agreement (see Subdivision D of Division 2C) that modifies, but does not exclude in full, the operation of this Subdivision, this Subdivision continues to apply to the extent and in the manner provided for in the agreement but not otherwise.I hope I do not have too many of these changes as we go along and I am very sorry for this, because I had not mentioned proceeding with 109. In fact, it is important to us and to many people because it is in relation to negotiation on seas and the intertidal zone. This is an area of major cultural, social and economic importance. I seek the support of the Senate on this.Amendment not agreed to.20:47:002436Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Amendments 268 and 270 are to oppose items 94 and 101. That is also in relation to the sea and intertidal zone.20:48:002436Bolkus, Sen NickSenator BOLKUSXE4SAALP00—The opposition supports the Greens (WA) on this amendment.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—The question is that schedule 2, items 94 and 101, stand as printed.Question resolved in the negative.20:48:002436Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—No. 185 is to oppose sections 251C and 251D. It is the same as the opposition's amendment. In effect, it is to remove the exemption for towns and cities in those cases where native title has not been extinguished within towns and city boundaries, which often extend over a very wide area—and might be even wider if the provision remains in this bill. These amendments ensure that this will not be extinguished by operation of this act. Per se, there is no reason that it should operate just for the sake of it being within those zones. The right to negotiate will apply in situations where the native title interest is sought to be compulsorily acquired. I commend this to the Senate.20:49:002437Bolkus, Sen NickSenator BOLKUSXE4SAALP00—The opposition not only supports this amendment, we also have an identical amendment to that of the Greens and Democrats. So after such a long debate we are actually coming together in at least a few areas. Our view was expounded very strongly last time we had a debate on this. That was that we did not believe that an artificial distinction as is proposed by the government has any foundation in law. In many towns and cities in Australia native title holders do maintain a strong connection to their country. A number of these towns and cities are developing rapidly, placing substantial pressure on native title. There is no reasonable basis for denying native title holders who fit through the threshold test and the definition of the law the protection of the right to negotiate simply because their land is within a town or city boundary.We have had some concerns with the Northern Territory where we have had examples of the Northern Territory government expanding the limits of town and city boundaries out of all proportion to municipal needs to avoid the operation of the Aboriginal Land Rights Act. In the last debate we talked about phantom or ghost towns such as Hatches Creek. At that stage, we were ridiculed by the government because we raised these sorts of matters. We raised the matter of a definition of a town in the territory being so great that its definition is in excess of the Greater City of London. It is good to see that this time the government in their amendments have acknowledged, for instance in respect of Hatch es Creek and other towns, that some of those towns were never developed, they have remained vacant Crown land from the date they were gazetted. In respect of Hatches Creek, the nearest town is in fact Tennant Creek, about 150 kilometres away. That sort of example exposes, I think, the artificial nature of the definition, one that does not reflect the common law and one THe opposition does not support .I also indicate at this stage that I have had another look at my amendment 114, the notification amendment. Though I indicated that I would not be proceeding with it, I do think there is a need to proceed with it. Later on, I will be seeking to commit that—after we vote on towns and cities.20:52:002437Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—The government continues to maintain its strong policy objective that in relation to towns and cities we should maintain the original foundation stone of the Native Title Act that native title holders should have the same procedural rights as everyone else. We think that is particularly important in towns and cities where Aboriginal and non-Aboriginal Australians live side by side. To have differential and indeed preferential procedural rights for one group of people based on their race when the people next door have different rights because they are of a different race we think is highly explosive, inflammatory and dangerous from a moral and philosophical point of view.Again, the Senate is sitting here in Canberra debating things without having any real understanding of the impact of its legislation on the ground. The fact is, in and around towns and cities across Australia native title claims are having a very dramatic effect on the availability of land and on land prices in a very detrimental way that is hurting other Australians and, indeed, on Aboriginal Australians. The claims mean that land cannot be released. It is getting caught up for years in the right to negotiate process.Only on 7 April the West Australian ran a story about the town of Wellstead as one of 19 country centres in Western Australia where land releases have had to be stopped because of native title claims. People are leaving the town and there will not be any land released until about 2001. Native title claims are tying up and making impossible the release of land because, until you get the whole process through the right to negotiate, you cannot get the land released. Senators have no idea of what is actually happening with the right to negotiate process—how it does not work. So we have the ridiculous situation where land prices in many towns—particularly in Western Australia, which has a huge amount of land—are skyrocketing simply because it cannot be released and you cannot do anything until you get through this extraordinary right to negotiate process.In towns and cities, based on equity grounds, we think what should happen is that native title claimants and holders should have the same rights as everybody else. If it is vacant Crown land in a town or a city, they will have the rights of a freeholder, the same as the freeholder next door; if it is pastoral lease land in a town or city, they will have the rights of a pastoral leaseholder. That was the foundation stone of the Native Title Act. It should apply in towns and cities.20:54:002438Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—As you know, Mr Temporary Chair, I sit here quite patiently and listen to the debate so that I can be informed. I certainly was not informed of anything by that last contribution. Alongside the example of one or two towns in Western Australia—I do not know the situation, although Senator Margetts no doubt has a better knowledge of it than I—let us talk about Queensland. Some time ago, when the coalition government in Queensland wanted to ensure that native title would become an election issue, they froze the transfer of every kind of lease in Queensland so that they could say that native title is holding up the transfer of leases on the Gold Coast, et cetera. That is the other side of the story.It is not just that native title might be causing problems. The real issue is that political parties in some of the state governments have decided, `Here is a nice little issue for us to have an election on and we will make darn sure that it becomes an elec tion issue because we will take action to ensure that everybody blames native title holders by ourselves refusing to transfer leases.' I understand that that situation has been freed up because they became so embarrassed when their little plot was found out that they backed off. That is the other side of the story to what the minister has been telling us.20:57:002438Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I intend to oppose this provision in the government's amendments. I acknowledge the depth of the minister's knowledge on these matters but, with respect, on this particular issue I must have misunderstood what he said about the difficulties that this is creating on the ground, that we in the Senate cannot really comprehend the difficulties, or words to that effect.In fact, it should be remembered by the committee that the first determined native title claim was in a town—that is, Crescent Head—and the right to negotiate facilitated the rapid settlement of that issue because it got the people together. It was arising out of that sort of procedure that the facts became known and the determination was made. Historically it is very important to remember that the first determined successful native title claim was, in fact, within the boundaries of a town.Frankly, too much is being made of these shibboleths, if I could put it that way. People say, `Towns and cities, golly, we can't have that. It's going to affect this, that and the other thing.' Let us have a look at what has happened on the ground in respect of the first claim. I do not believe the section which we are now being asked to support is warranted and I am going to vote against the question that the clause stand as printed.21:00:002438Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Just briefly, I would like to back up Senator Harradine inasmuch as there is no actual logical reason why there is a shock-horror problem with native title claims within towns and cities. The Nyungah people in Western Australia are used to making an effort to look after areas like remnant bushland, wooded wetlands and reserved or Crown land within the town barrier in Western Australia. Of course, Perth is a huge area from north to south and east. It is enormous. The defined Perth metropolitan area is enormous—perhaps one of the biggest cities in the world in terms of sheer size, not in terms of numbers. There is no actual logical reason why you should say that, because it happens to be within a town or city boundary, somehow or other the need to negotiate or the right to negotiate for native title holders should be removed. There is no logical reason whatsoever.21:01:002439Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—Senator Margetts and Senator Brown continue to say things which, frankly, misrepresent the government's position. The clear implication of that was that somehow you could not make native title claims in a town or city. There is nothing in our bill which prevents anyone who asserts they hold native title from making the claim in a town or city where native title may have survived.We are talking about the procedural rights that attach to the native title claim. The question asked at the beginning of that statement was: what is wrong with making a native title claim in a town or city? There is nothing wrong with making a native title claim in a town or city if native title may have survived there, and our bill facilitates that. We are talking about the procedural rights that attach. In a town or city where you have Aboriginal and non-Aboriginal Australians living side by side, the only sensible approach, in our view, is the approach adopted as the foundation stone of the Native Title Act—that is, equal procedural rights for all Australians.21:02:002439Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Excuse me, but there are non-Aboriginal people living in the rural areas too—I am not sure whether the minister has remembered this. It does not matter. I am not even sure what you are talking about in terms of whether or not people are living side by side. It is irrelevant to this argument. If there is vacant Crown land or land that can be claimed for native title, it does not matter whether it is in the urban areas or not. We know there are people living in mining areas. We know there are Aboriginal and non-Aboriginal people living in rural areas and on pastoral land. That is the whole point of this debate. It is about the Wik decision. It is about coexistence. So the logic is just totally not there.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Chapman)—The question is that schedule 1, item 50, sections 251C and 251D stand as printed.Question resolved in the negative.21:03:002439Bolkus, Sen NickSenator BOLKUSXE4SAALP00—At this stage, I wonder whether I can go back to opposition amendment No. 114. I said earlier that I would not be proceeding with amendment No. 114 but, since I did not proceed with it, I do not have to ask for recommittal now and can go ahead and move it. I would like to do that.DX5MARGETTSSenator Margetts—Are those other ones consequential?XE4Bolkus, Sen NickSenator BOLKUS—The other ones are consequential; that is right. Amendment N29 is consequential, and we do not need to pass that. But I had thought that Nos 218, 117, 200 and 295 had all been put. They are part of the same package. For formality, Mr Temporary Chairman, we can probably proceed to those first—that is, Nos 117, 200 and 295. They all go to the definition of town and city, and they are consequential to the decision we have just taken. If we move those, I can then move to amendment No. 114. I move:(117) Schedule 1, item 9, page 79 (lines 1 and 2), omit paragraph (f).(200) Schedule 1, item 34, page 133 (line 11), omit ", 251C(4) or (5)".(295) Schedule 2, item 78, page 218 (table), omit the item relating to town or city.21:04:002439Harradine, Sen BrianSenator HARRADINE6H4TASIND00—These are consequential amendments, as I understand them. I am supporting those amendments, as I did on the previous occasion.Amendments agreed to.21:05:002439Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I indicate that amendment N29 is not necessary. I move:(R114) Schedule 1, item 9, page 78 (after line 21), after subsection (1), insert: (1A) A compulsory acquisition will be deemed to be an acquisition involving a conferral of interests on persons other than the Government party, unless it is stated in writing to be for a Government purpose.This amendment inserts subsection 1A into section 26 to ensure notification as to whether the acquisition is for the purpose of granting interest to a non-government party. This is important. There are problems created by state and territory governments which, for some unknown and unacceptable reason, refuse to notify parties as to whether an acquisition is for the purpose of granting interest to a non-government party. This distinction between government and non-government parties does have flow-on effects in terms of rights under the act.The failure to so notify causes confusion for native title holders, and in such circumstances they are unaware as to what processes they need to embark upon. It is one of those amendments that, had you had some good faith in the application, enforcement and administration of the act, you would not need. But experience indicates that we do need it. For that reason, the opposition moves it at this particular time.Amendment agreed to.21:06:002440Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I move:(N24) Schedule 1, item 9, page 79 (lines 22 to 24), omit subsection 26A(3), substitute: (3) The second condition is that the act or acts will have an insignificant impact on the particular land or waters concerned, taking into account, in appropriate cases, the possibility or likelihood that more than one such act may affect the same area.(N25) Schedule 1, item 9, page 80 (line 18) to page 81 (line 2), omit paragraphs 6(b) and (c), substitute: (b) any such persons or bodies will have a right to be heard by an independent person or body, which person or body (not less than two months after receipt of the notice referred to in paragraph (a)) will determine: (i) whether the act is to be done; and (ii) any matter relating to the doing of the act, and in particular, the matters referred to in subsection (7); and (c) the person who will do anything authorised by the act will have a legal obligation to consult in good faith: (i) any person or body covered by subparagraph (a)(i) or (ii); and (ii) any person identified by the representative Aboriginal/Torres Strait Islander body as a holder of native title in the area affected by the act; for the purpose of 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).(N26) Schedule 1, item 9, page 81 (after line 20), after subsection (7), insert:Fifth condition (7A) The fifth condition is that the Minister is satisfied that if the person who will do any thing authorised by the act does not comply with any requirement, limitation or condition imposed in relation to the doing of the act in accordance with the outcome of procedures and matters referred to in the fourth condition, the persons and bodies referred to in subparagraphs (6)(a)(i) and (ii), or in the case where such persons or bodies do not exist in relation to all of the area affected by the act or acts, the representative Aboriginal/Torres Strait islander body referred to in subparagraph (6)(a)(iii), may make application to the independent body or person referred to in paragraph (6)(b) and the independent body or person may determine that: (a) the authority for the act be revoked; and (b) where applicable, compensation be paid to the parties referred to in subparagraph (6)(c)(i) and (ii).These amendments go to section 26A and to the question of the application of the right to negotiate in respect of—particularly in this instance—exploration schemes. What we try to do through opposition amendments Nos N24, 25 and 26 is amend the regime to accommodate what is in essence a small problem. I think we indicated already that government amendments 38 and 39 are seen to be beneficial, but we think that we should go a bit further. We do have some criticisms of the government's section 26A scheme. The government's provisions establish state and territory schemes for exploration, prospecting and fossicking as defined in 26A. Such territory schemes replace the right to negotiate for the activities listed in 26(2)(b).Much of the activity in 26A would not qualify under existing 26(4), which provides for approved schemes to replace the right to negotiate where the acts covered by the scheme have `a minimal effect on native title'. Our concern is that this exclusion effect, this scheme, applies to too broad a range of activities. It applies to quarrying, but the government has agreed to remove that and it does so through section 38. However, subsection (3) is, we deem, too broad in its application. Subsection (3) provides for the application of the scheme where the act or acts:are unlikely to have a significant impact on the land or waters concerned.The concern is that this would cover a wide range of activities which are currently covered by the right to negotiate. It has to be said this exclusion is likely to apply to almost all exploration activities, including mining retention licences, bulk sampling—in some states up to 20,000 tonnes—and extensive drilling, which is covered in subsection (2).Given that the scheme does remove the right to negotiate where it applies and replaces it with lesser rights for native title holders, we believe that the impact of the scheme should in fact be limited to what we call `insignificant impact on native title'. Unlike the right to negotiate, the section 26A schemes of the government are linked to state and territory mining legislation. They provide only for a right to be heard by an independent person rather than for the matter to be heard by an independent arbitrator.State and territory ministers or some other delegated person or body have an absolute discretion to ignore the concerns of title holders. One good example of this is the Northern Territory Mining Act, which gives the minister unfettered discretion to grant an exploration licence. When an assessment is made of this and it is compared to the right to negotiate, it is a major deviation from the right to negotiate. In fact, it is not even a right to consultation in an effective term.The government scheme offers consultation only to registered native title claimants of native title bodies corporate. As such, native title holders will not be able to seek the protections referred to in subsection (7). Once again, this is contrary to the right to negotiate which provides a process for native title holders to become registered to protect their interests. If this omission is not corrected, Senator Minchin, it is another one of those areas that will lead to litigation.There is also concern, of course, as to the consultation on and identification of sacred sites. That concern was expressed in the debate last year and is picked up by government amendment 39.The scheme also does not have provisions to ensure enforcement of the conditions of any grant inserted for the protection of native title rights and interests. It is a strange situation when one goes through a process at the end of which there is no capacity to enforce protection for native title claims and interests. Basically, it is a token process which really does not offer much in terms of protection or recognition of title interests.We do see merit in a scheme that accommodates a range of exploration but which also deals with the concerns expressed above. The scheme proposed by Labor is through N24. We replace subsection (3) to limit the application of 26A to acts which individually or in aggregate have an insignificant impact on native title.N25 provides for a period of two months to enable identification and notification of relevant native title holders to ensure that their interests are taken into account. We provide that the doing of the act and its conditions must be determined by an independent body. We also ensure that there are consultations as to relevant matters and that those consultations be conducted in good faith. Subsection 7(a) also provides a mechanism to ensure enforcement.What we are dealing with here is a system whereby an exploration activity which either in itself or in a cumulative sense in aggregate with other approvals has an insignificant impact on native title. We think it is important in terms of the exploration interests of stakeholders, but it is also important in terms of recognising the burden on representative bodies who will have more than enough to do in the forthcoming few years to accommodate and represent the interests of title claimants and holders. At this stage, those bodies do not in practice, I believe, have the resources, the interest or the capacity to take into account such low impact exploration. In fact, when talking to them many of them indicate that they are more concerned with ensuring that there is a mechanism in place to determine what is insignificant as opposed to what is not so that they can protect their valid interests. They would like to dispense with some of the high volume but insignificant impact exploration acts.It is for this reason we put forward our alternative to the government scheme. It is much more limited. We look forward to getting some support. But I indicate that the government scheme is in no way attractive to us.21:14:002442Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Senator Bolkus, you have convinced me—no, we were convinced already. We actually believe N24 and N26 are an improvement on our proposal to oppose section 26A, so we will be supporting you, Senator Bolkus. We might seek to oppose it if we end up with the section unamended, but I would hope that we do get support in the Senate for your amendments.21:14:002442Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I was about to say I welcome the ALP at least acknowledging the government is right in principle in having an alternative regime for exploration, but it now appears that the Greens accept that as well.We do not accept the amendments to our 26A proposal, albeit we do at least acknowledge that the ALP is back where they started in 1993 and that is, as Prime Minister Paul Keating said, it was always intended that exploration could be dealt with outside the right to negotiate process, because even then, before we knew how difficult the right to negotiate process would be, the then Keating government clearly saw that exploration clearly was not and should not be subject to the full-blown right to negotiate. That is why we put forward section 26A.As I say, at least the principle of having an alternative regime for exploration has been accepted, so we are grindingly making some progress after two years of trying to persuade other parties to see reason on these things. However, we believe that the opposition amendments worsen the regime, restrict it too much and potentially expose to the right to negotiate process exploration activities for which it is entirely unsuited. Therefore, we oppose the amendments.21:16:002442Bolkus, Sen NickSenator BOLKUSXE4SAALP00—Unless Senator Harradine appears in a very short time, we may put this to a vote. My understanding is that he is going to be supporting the opposition amendment; that seems to be the understanding of other senators here. I do not want to wrongfully verbal him on this, but maybe if the government has similar advice, Senator Minchin will probably reciprocate the trust that we put in him yesterday and suggest that maybe we defer this till later. That is our understanding, Senator Minchin, and we may proceed on that if you wish.21:16:002442Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I would love to cooperate but I do not know Senator Harradine's state of mind on these amendments, so if we could wait, I would prefer to, if you do not mind. I see Senator Harradine has arrived in the chamber.Amendments agreed to.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Chapman)—I understand that we now move to opposition amendments R115, R197 and R202. Senator Bolkus?DX5MARGETTSSenator Margetts—Why are we changing from the sheet?10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Because that is the advice I have been given, Senator Margetts.XE4BOLKUSSenator Bolkus—We actually did deal with renewals at an earlier stage. I think we dealt with them yesterday and that may in fact be the reason, Senator Margetts, but I cannot say that I could be totally sure.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Are you seeking to deal with your amendment 111, Senator Margetts, prior to moving on to the next opposition amendments?DX5MARGETTSSenator Margetts—That is what the order says. I do not mind changing the order if there is a rationale to it.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Is it the wish of the committee to deal with item 111 prior to—DX5MARGETTSSenator Margetts—You don't have to ask, it's on the sheet.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Senator Margetts, the sheet is not writ law. The chair is in control of proceedings on advice from the Senate, but the Senate has now determined that we will deal with your amendment 111.DX5MARGETTSSenator Margetts—Mr Temporary Chairman, it is just that you called for a motion to be carried and I thought that normally you just called people to speak as per the sheet. I was just questioning why you called for a motion to be carried to act according to the sheet. I thought normally you ask for a motion to be carried if you divert from the program of the sheet.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Senator Margetts, I would normally wait for people to rise and seek the call if they have amendments.DX5MARGETTSSenator Margetts—I was actually trying to do at the time.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—No, you were not because I was looking for someone.HX5WOODLEYSenator Woodley—I am sorry, Mr Temporary Chairman, but you seem to be targeting Senator Margetts and I want to object that. Your behaviour from the chair tonight is becoming quite objectionable.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—I object to that comment, Senator Woodley.HX5WOODLEYSenator Woodley—I am sure you do.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Would you please take your seat. That is not an accurate statement. I looked around the Senate after we dealt with the last opposition amendment. There was no senator standing seeking to move any amendment. Senator Bolkus then stood, and after he had stood, Senator Margetts then stood. That was the order of proceedings. It was only after Senator Margetts stood that I became aware that she wanted to move amendment 111 prior to Senator Bolkus moving his amendments.HX5WOODLEYSenator Woodley—Does that explain your shouting at Senator Margetts just a little while ago when she interjected?10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—I beg your pardon? It is my duty in the chair, Senator Woodley, to keep order in the chamber.XE4BOLKUSSenator Bolkus—I rise on a point of order, Mr Temporary Chairman. I wonder if we can actually proceed to hearing Senator Margetts.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—That is what I am trying to do, but Senator Woodley does not seem to want to do that. I call Senator Margetts.21:21:002443Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Mr Temporary Chairman, while I am on my feet I would like to say that part of the reason why I have given a quip back is that I have been treated, I believe, quite poorly and rudely by you in the chair. I do not know why, but I do say that I have noticed that, certainly, and that amounts to my response to you because you have in fact seemed to treat me differently from anybody else in the chamber.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—That is not an accurate perception, but I will let the comment pass, Senator Margetts. Please move your amendment.DX5Margetts, Sen DeeSenator MARGETTS—We oppose section 26B in the following terms:(111) Schedule 1, item 9, page 82 (line 3) to page 84 (line 34), section 26B.This section relates to removing the right to negotiate in relation to gold and tin mining. I do realise that this is an area where there is a difference of opinion with the opposition, but I still think it is important enough to move and have on the record.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—The question is that schedule 1, item 9, section 26B stand as printed. Those of that opinion say aye; against say no. Senator Harradine, are you voting?21:22:002444Harradine, Sen BrianSenator HARRADINE6H4TASIND00—What amendment is this?10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—This is Greens amendment 111 opposing section 26B.6H4Harradine, Sen BrianSenator HARRADINE—I apologise to the committee. As a matter of fact, I was attempting to make an urgent phone call which has nothing to do with the committee, but perhaps you could bear with me for a moment and go on to the next matter.21:23:002444Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—May I comment while Senator Harradine just apprises himself of what is proposed. Despite there not being any ALP amendments on this, the ALP seems to be supporting the proposition that we not provide that approved gold or tin mining acts are not covered by the right to negotiate provisions.This is all about having had four years experience of the right to negotiate process and where it is practicable and where it is not. I would have thought it was appropriate that parliaments do examine, with the benefit of experience, the effect of their legislation on activities around Australia. This sort of alluvial gold and tin mining simply does not lend itself to the full-blown right to negotiate process. So we have gone to great lengths to set out an alternative procedure for ensuring that appropriate negotiation rights are set up for native title claimants and holders in respect of these kinds of classes of gold and tin mining acts which are essentially alluvial. They involve very short time spans for operations and frequent moves. The right to negotiate process simply does not work with that sort of gold and tin mining.So we have set in place, as you can see in 26B, a quite sophisticated structure for providing a proper process to ensure consultation and negotiation with native title holders, but not as part of this full-blown statutory right to negotiate process. That does allow alluvial gold and tin mining to proceed, because it is just not the sort of mining that lends itself to the full-blown right to negotiate.21:25:002444Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I apologise to the committee. I know what happened. There is no Greens (WA) amendment; the question is that schedule 1, item 9, section 26B, stand as printed, as I understand it.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—That is correct.6H4Harradine, Sen BrianSenator HARRADINE—I apologise. I was looking for an amendment. But I am supporting the motion.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—The question is that schedule 1, item 9, section 26B, stand as printed.Question resolved in the affirmative.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Senator Margetts, do you want to move 112?21:25:002444Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—No, I will not be moving 112, nor will I be moving 105, 166 or 171.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—We now move to opposition amendments R115, 197 and 202.21:26:002444Bolkus, Sen NickSenator BOLKUSXE4SAALP00—Those amendments were only going to be moved if previous amendments were unsuccessful. Those amendments were successful, so we do not need to move those either. We can actually proceed to opposition amendments 125 to 127, 130 and 134, which go to conjunctive agreements. So I move:(125) Schedule 1, item 9, page 88 (line 13), omit ", (g) or (h)".(126) Schedule 1, item 9, page 88 (lines 15 to 19), omit paragraph (c), substitute: (c) the agreement mentioned in paragraph 28(1)(f) provided: (i) an express understanding that there would be no further negotiation before the later act took place; and (ii) that, if the later act were done, certain conditions would be complied with by parties other than native title parties (whether before or after the act was done); and(127) Schedule 1, item 9, page 88 (after line 22), at the end of section 26D, add:Exception (3) However, the exclusion provided by this section does not apply if the agreement with respect to the earlier act provides for or permits the application of this Subdivision to the later act.(130) Schedule 1, item 9, page 91 (after line 7), at the end of section 28, add: (3) A person wishing to lodge a native title determination application under section 61 may apply to the Federal Court for an order prohibiting the doing or continuation of any act to which this Subdivision applies on the basis that section 29 has not been complied with.(134) Schedule 1, item 9, page 97 (after line 14), at the end of section 33, add: (3) If the negotiations are with respect to a right the creation of which may constitute an earlier act for the purposes of section 26D, the negotiations may include the possibility that: (a) any agreement which results will provide for further negotiations in respect of an act that constitutes a later act for the purposes of that section; or (b) this Subdivision will apply to the later act. (4) Proceedings may be taken in the Federal Court in relation to an agreement reached under section 31 pursuant to negotiations about matters referred to in subsection (3): (a) for specific performance of the agreement; or (b) for a declaration that the conditions of the agreement agreed to by non-native title parties have not been complied with; or (c) for an injunction or prohibition restraining those parties from continuing to do things under the act or the later act; or (d) for damages for the doing of the things or for a failure to comply with the conditions, or both.These amendments go to the issue of conjunctive agreements. As I indicated earlier, the government has three amendments to this particular area—41, 42 and 43—and we support those, but we do say that the government's bill does not go as far as it should.As the bill stands, 26D(2)(b) excludes the right to negotiate where there has been a conjunctive determination. It can be excluded either by a state or territory minister, under sections 34A and 36A; by an arbitral body, under section 38; and by a state or territory minister overriding an arbitral determination, under section 42. This basically means that there are no real bona fides in the system. This means that, against the wishes of native title holders, determinations can be made about current and future acts—for example, an arbitral body may determine that an exploration may occur and at the same time determine that any mining arising from that kind of exploration licence can occur despite the fact that the type and effect of any future mining may not yet be known.In our amendments 125 and 126, we ensure that section 26D does not extend beyond conjunctive agreements by removing the references to 28(1)(g) or 28(1)(h) in section 26D(2)(b) and 26D(2)(c), and we leave it open for native title and other parties to enter into conjunctive agreements.Opposition 127 provides that the parties can agree that all or part of the right to negotiate provisions can apply to subsequent acts. Opposition amendment 170—in related amendments—inserts subsection (3) into section 38 in respect of arbitral determinations. That permits an arbitral body to make a determination which has conjunctive effects so long as the determination provides for further negotiations or the right to negotiate to apply.Basically, we are saying here that the parties can agree to cover not just an exploration but also a mining operation. This is one of those areas where flexibility is required. It is required because, for instance, industry for one is not united on where the right to negotiate should apply. Also, given the nature of mines, it provides greater fairness if parties can actually not just agree to an exploration regime but also agree to, for instance, heads of agreement that govern any future developments in respect of the operation.The important aspect here is that it is to the benefit of all if you can, at a particularly early stage, get the parties together to work out longer term agreements, based in a spirit of coexistence and cooperation, to determine future developments on land in which Aboriginals do have a title interest. It is an important one in terms of process, but it is also an important one in terms of the message that this parliament gives to stake holders—to get together early in the piece and try to work out beneficial longer term arrangements within the infrastructure and framework of the law.21:29:002446Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I have circulated a new government amendment. The right to negotiate No. 1 relates to section 26D. It is in conflict with amendments 125, 126 and 127. In other words, it deals with these issues in a different way, in a way that we think is preferable. I would formally move those because it is in the alternative to those opposition amendments.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—You can foreshadow your intention to move those. We have to deal with Senator Bolkus's amendments first, though.21:30:002446Bolkus, Sen NickSenator BOLKUSXE4SAALP00—If it helps the committee, we have had a chance to look at Senator Minchin's amendment, as flagged. This amendment extends the ALP position to arbitral determinations—that is, an arbitral body under the provisions proposed by the minister can make a ruling about mining when hearing a matter in respect of, for instance, exploration even though there has been no section 29 notice making a reference to a mining act. The contra-activity here is linked to agreement under amendments 125 and 126. We are concerned about this. We are concerned that this is, in many respects, a broad sweeping catch-all provision which, in being so broad sweeping and catch-all, can catch native title interests unawares in that they will not be notified of what may be happening in an arbitral determination. Because of that consequence, we say to Senator Minchin that it is a good try but it does go too far and we cannot support it.21:31:002446Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—These are identical with the Democrats-Greens amendments 114, 116, 120 and 124. They are the right to negotiate by reason of earlier agreement. Of course we will be supporting them.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator McKiernan)—The question is that amendments 125, 127, 130 and 134 moved by Senator Bolkus be agreed to.21:32:002446Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—My advisers inform me that opposition amendment 130 should not be in this block. It does not actually deal with these agreements. You might just want to check whether that is the case.21:32:002446Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I have to say that, as they were telling you that, I was asking my advisers whatever happened to 130. You are right, Senator Minchin. Amendment 130 should come up in the next lot. If we can defer that and move the others at this stage, that will be the appropriate thing to do.21:33:002446Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I indicate that I support amendments 125, 127 and 134.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—The question before the committee is that amendments 125 to 127 and amendment 134 moved by Senator Bolkus be agreed to.Question resolved in the affirmative.21:33:002446Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I had indicated that the government amendment just circulated, No. 1, was the alternative to amendments 125, 126 and 127. But those amendments having been carried, there is no point in now moving the government amendment, otherwise we would end up with conflicting amendments.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—We now proceed to amendment 137, to which you are opposing section 34A.21:34:002446Bolkus, Sen NickSenator BOLKUSXE4SAALP00—Chair, we do have amendment 130, which was deferred from the previous batch. I suggest that we deal with that at this stage. It refers to section 28, injunctive relief. What we seek to do with 130 is insert a subsection (3) into section 28 to provide for native title claimants to seek injunctive relief where the notification provisions in section 29 have not been complied with. There is a potentially big problem here. If the right to negotiate process proceeds and is invalid as a result of a relevant government's failure, for instance, to comply with the requirements of section 29 and as a consequence of which native title holders do not have sufficient notice, then it is important for us to be able to tackle that early in the piece rather than down the track when negotiations have been proceeding for quite some time and parties may in fact be going to court. To ensure that there is no question of invalidity, to ensure there are negotiations in good faith, as is required by the act, it is important for us to ensure that there is a capacity for applicants to seek injunctive relief at that particular stage. If the right to negotiate processes are not suspended, native title holders could be deprived of a real opportunity to negotiate an agreement. As I say, it is likely that, in those circumstances, conflict will develop and develop expeditiously over time.So amendment 130 provides that the process can be frozen if injunctive relief is sought in relation to section 29. Given the speed at which injunctions can be sought and determined, any delay to the right to negotiate process will be quite minimal. I say that with a great degree of experience, having been a former immigration minister. It is very easy to get access to courts to get a hearing on an injunction. Those hearings can be either by phone or on weekends. There is an expeditious procedure available to people. We do not see that our provision here would frustrate any real negotiating process.Amendment No. 130 agreed to.21:37:002447Bolkus, Sen NickSenator BOLKUSXE4SAALP00—The opposition opposes section 34A as follows:(137) Schedule 1, item 9, page 97 (line 20) to page 99 (line 10), section 34A TO BE OPPOSED .Whilst I move that, amendment 134 is one that I thought may come up before it.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—We have carried that.XE4Bolkus, Sen NickSenator BOLKUS—Section 34A relates to the government's provisions that allow a minister to intervene prior to arbitration. I note here that there is a bundle of consequential amendments to this, and I note that the Democrats-Greens (WA) position is identical to ours.We have a concern with the government amendments. The government's bill gives the minister, who is likely to be either a state or a territory mining minister, a process to bypass the right to negotiate four months after a section 29 notice is issued. That is the cut-off date for registration of an application; hence the likelihood of any agreement within a four-month period is extremely remote.I have to say that the basis for intervention under the government's proposal is a bit rich and includes that the act is likely to be of substantial benefit to Australia. That is a good parenthood statement that we all agree with, but what is good for Australia should also accommodate what is good for the property interests involved, including Aboriginal Australians. Another basis is that if the determination is not made, the benefit will be reduced or will not arise.We in this place are always subjected to highly paid consultants briefs that tell us what an enormous impact a particular measure will have on the economy. I think the economy has been under threat of destruction time and time again because of a minor measure. It is not hard to get documentation to support such cases, and we think this particular provision is so open-ended it is farcical, and native title holders will gain significant benefits from conditions permitting the act.That is something that is also quite often in dispute. In fact it is in dispute in respect of this legislation. The government says that they are getting enormous benefits; every Aboriginal in Australia says that they are not. The government lawyers are saying this legislation is detrimental and discriminatory; the government is saying it is beneficial. These sorts of criteria are really not worth putting on paper.There are procedural provisions in section 36B(3) which require the minister to invite submissions, with a notice for receipt of submissions at the minister's discretion. The minister must distribute submissions to other parties and provide them with seven days in which to respond. Let us face it, we are talking about some pretty big proposals here. More importantly, the minister is not required to consider the submissions. So if anyone thought that there might be some equitable relief in any admin law process, just keep in mind that you might go to all the trouble of putting up a submission but the minister has no duty to require it. So there is inadequate notice.The other concern is that quite often in these sorts of situations it is a conflict between a native title interest and a government which is at the heart of the issue. In those circumstances, where there is such a conflict and the state ministers have the responsibility to make a determination, there could not be a more clear example of a conflict of interest than that. We believe that this provision should be amended, and our amendment 137 opposes section 34A, which provides for this early ministerial intervention.21:40:002448Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—They are indeed the same set of amendments as the Greens-Democrats amendments. I support the words of Senator Bolkus here. We know what happens when ministers try to intervene, especially where there are provisions or authorities that are set up to deal with these issues. We have examples in front of us of court cases such as the Brandy case where, clearly, there are problems involved, and even constitutional problems involved, with some of these kinds of actions. I believe it is better that we remove the provisions that enable this premature ministerial intervention.21:41:002448Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—We debated this proposition of ours at some length last time, so I will not repeat all that. We think that 34A is a sensible and appropriate procedure to insert in the act. As I say, we would not expect that it would be used very often at all, but we do think it is responsible for the parliament to set up a procedure where, if there is a substantial economic benefit at stake, there should be the opportunity in constrained circumstances for the government, through the relevant minister, to act accordingly.In 34A(3) we do set down those conditions that all have to be met. They are not in the alternative. Every single one of those five conditions must be met before a determination can be made that the act be done. So we think this power is extremely constrained and should remain in the bill.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—The Senate is actually dealing with opposition amendment No. 137 on its own at this point in time. I repeat that so that there is clarity for the committee so that we know what we are talking about. The question is that schedule 1, item 9, section 34A stand as printed.Question resolved in the negative.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Senator Bolkus, is it your wish that the next two blocks of amendments—that is, the first block leading with 129 and the second block leading with 144—be taken together? Or is it the wish of the committee that they be done separately?21:43:002448Bolkus, Sen NickSenator BOLKUSXE4SAALP00—My advice is that they have actually been done. They were consequential to 137 and they go to the issue of ministerial intervention. I believe Senator Harradine last year did move an amendment No. 26. But I do not know if that is actually with us today. I do not think it is. My advice is that all those amendments are consequential to 137 in minor parts and we do not need to proceed with them.DX5MARGETTSSenator Margetts—We just passed that; we got it up.XE4Bolkus, Sen NickSenator BOLKUS—Did we just get that?QD4BROWNSenator Brown—Yes.21:44:002449Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I understood that Senator Harradine was not voting that 34A stand as printed, so I assume that motion was lost.XE4BOLKUSSenator Bolkus—Maybe we could ask him.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Senator Harradine, could you clarify the situation on that last vote for the committee, please?21:44:002449Harradine, Sen BrianSenator HARRADINE6H4TASIND00—Yes. I voted to oppose section 34A. Under the circumstances, I believe Senator Bolkus needs to move certain consequential amendments.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—That was my understanding. Senator Bolkus, you do need to proceed with your subsequent amendments.21:45:002449Bolkus, Sen NickSenator BOLKUSXE4SAALP00—It has been a long debate, Mr Temporary Chairman. I move:(129) Schedule 1, item 9, page 90 (line 25), omit "34A,".(135) Schedule 1, item 9, page 97 (line 18), omit "34A,".(139) Schedule 1, item 9, page 99 (lines 18 and 19), omit paragraph (c).(140) Schedule 1, item 9, page 99 (line 22), omit "34A,".(144) Schedule 1, item 9, page 100 (lines 30 and 31), omit paragraph (c).(149) Schedule 1, item 9, page 101 (line 22), omit "34A or ".(150) Schedule 1, item 9, page 101 (line 23), omit "34A or".(152) Schedule 1, item 9, page 101 (lines 28 to 30), omit paragraph (2)(a).(159) Schedule 1, item 9, page 103 (line 20), omit "34A and ".(160) Schedule 1, item 9, page 103 (line 24), omit "34A or".(354) Schedule 5, item 11, page 351 (line 32), omit "34A,".I indicate that they are all consequential upon amendment 137.Amendments agreed to.21:45:002449Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I move:(166) Schedule 1, item 9, page 105 (line 20), omit "34A or".(174) Schedule 1, item 9, page 109 (line 10), omit "34A or".(176) Schedule 1, item 9, page 112 (lines 35 and 36), omit "34A or 36A, or both,", substitute "36A".These amendments are consequential upon amendment 137 as well.Amendments agreed to.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator McKiernan)—Senator Bolkus, have you moved N28?21:46:002449Bolkus, Sen NickSenator BOLKUSXE4SAALP00—No, I have not. I move:(N28) Schedule 1, item 9, section 35, paragraph (3), omit "34A,".This long page of amendments seems to be a very quick one to process, because my understanding is that all that amendment N28 does is remove `34A' from government amendment 44. The government has amended the bill by the insertion of amendment 44. My understanding is that the policy that underlies the government's proposal is the encouragement of agreements, even though the matter is referred to arbitration. The NTA currently provides that native title parties, a grantee and the government can enter into 31(1)(b) agreements up to the time that an arbitral determination is handed down.Agreements remain, for us, the most effective and equitable means to resolve matters. However, the government has not adopted this policy to extend the capacity to make agreements to the actual arbitration date. We think the government has adopted a somewhat inflexible approach. We believe that removing section 34A from government amendment 44 allows the flexibility to do what we have set out to do—that is, to ensure a greater time process for agreements to be made.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Given that section 34A is already out, do we need to proceed with this?XE4BOLKUSSenator Bolkus—I think we need to do it to tidy it up. In fact, it is a consequential amendment.Amendment agreed to.21:49:002450Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I move:(126) Schedule 1, item 9, page 97 (line 19), after "38", insert ", unless the parties to the agreement agree in writing that the determination should not have effect, or should have effect as modified by the agreement, in which case the determination has no effect, or is effective as so modified".Amendment 126 is, of course, identical to the opposition's amendment 136. It permits an agreement to vary or replace a determination after a determination is made under section 34 and section 40.Amendment not agreed to.21:50:002450Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I explain that I was going to take that same vote on amendment 136, which you are presumably not moving, Senator Bolkus.21:50:002450Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I move:(142) Schedule 1, item 9, page 99 (line 25) to page 100 (line 20), omit subsections (1), (2), (3) and (4), substitute: (1) Subject to section 37, the arbitral body must take all reasonable steps to make a determination in relation to the act within: (a) if the act is the grant of a licence to prospect or explore for things that may be mined—the period of 4 months starting when the application is made; or (b) in any other case—the period of 6 months starting when the application is made. (2) The arbitral body must not make a determination that the act may be done unless it is satisfied that the Government and grantee parties negotiated in good faith as required by subsection 31(1).Report to Commonwealth Minister (3) If the arbitral body is the NNTT and it does not make the determination within the period, it must, as soon as is reasonably practicable after the end of the period, advise the Commonwealth Minister in writing of the reason for it not doing so.Commonwealth Minister may give notice as to urgency (4) At any time after the end of the period applicable under subsection (1) in respect of an application under section 35 that has not been withdrawn, and before either: (a) the negotiation parties have made an agreement of the kind mentioned in paragraph 31(1)(b); or (b) the arbitral body has made a determination under section 38; the Commonwealth Minister may give a written notice to the arbitral body requesting the arbitral body to make such a determination within the period specified in the notice. The period must end not earlier than 30 days after the day on which the notice was given.I am not sure whether Senator Harradine was indicating he would take the same position on 142 as he took on 136, but let me explain that opposition amendment 142 replaces section 36, the arbitral determination provision, with provisions which reinstate the current position in the Native Title Act for reasons that ensure timely but not inflexible time frames for arbitration.The thing to note here is that opposition amendment 142 was inadvertently not moved in December. As a consequence, we do need to focus on it now. We need to ensure that there is a framework for arbitral determinations in the bill that is passed tonight.With respect to the government's reduction of arbitration time periods, our amendment 142 effectively remedies the government amendments which reduce the current arbitration period in the act from six months in the case of acquisition and mining, other than exploration, to four months. We think it is unacceptable to expect a large and complex proposal, quite often covering vast areas, technologies and impacts, to be arbitrated within a minimum of four months.We also maintain a commitment to legislation which puts a foundation under the sorts of negotiations we expect to take place. We are proceeding with this amendment to ensure that arbitral bodies can proceed to arbitration, but should do so only if there have been good faith negotiations. It is important to do that. As I say, it is something that you would otherwise not really spend the time of the parliament on; you expect negotiations to be in good faith. There have been experiences, as reflected in the Federal Court case of Gwalia and the state of Western Australia in June 1996, where it was found that good faith negotiations did not take place. We believe it is important to ensure that that requirement still governs negotiations between parties. They are the two things the amendment does, and we commend the amendment to the committee.21:52:002451Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I am restricting my comments on these amendments because we are debating things that we debated last time and the government's position is well known. This is a classic example of where the opposition and the Senate are not taking account of the experience of the right to negotiate process and the extent to which it is simply not working. As we saw on the Lateline program the other night, the Sons of Gwalia case is a classic example of where you have a right to negotiate process involving only one native title claimant and yet, 3½ years after that company first sought its mining lease and followed the procedures of the right to negotiate process as best it could, it still does not have its lease.This is going on all over the country. Experience is showing that the right to negotiate process is becoming an absolute legal minefield, with legal challenges every step of the way. We have tightened up the procedure. That is what our amendment 36 does in view of what is going on on the ground, with mining leases simply going in one end and nothing coming out the other end.There has been an 80 per cent reduction in the number of mining leases issued in Western Australia since the right to negotiate process commenced in that state. That may please some senators who do not want any mining in this country, but for those who do know how much wealth and how many jobs are generated by the mining industry, and how dependent on it we are, that must be a cause for considerable alarm. These opposition amendments simply reflect a complete failure to take account of the fact that the right to negotiate process, as it is currently structured, is not working and there is a need for it to be streamlined and tightened up in the way we proposed. To go back and stretch out time limits again and loosen the system will only compound the very significant problems we are having. ATSIC itself, in its recent report on native title, acknowledged the very significant problems in the practical operation of the right to negotiate process. I implore the Senate to reject this amendment.21:55:002451Harradine, Sen BrianSenator HARRADINE6H4TASIND00—At this time of night I intend to support the opposition's amendment, although there are some features of it that I would perhaps quibble about if we had more time. But that quibble is not sufficiently strong to make me vote against the amendment at this time. I am voting for it.Amendment agreed to.21:56:002451Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I move:(143) Schedule 1, item 9, page 100 (line 23), omit "Relevant ", substitute "Commonwealth ".(145) Schedule 1, item 9, page 101 (line 1), omit "relevant", substitute "Commonwealth".(146) Schedule 1, item 9, page 101 (line 4), omit "relevant", substitute "Commonwealth".(147) Schedule 1, item 9, page 101 (line 5), omit "relevant", substitute "Commonwealth".(148) Schedule 1, item 9, page 101 (lines 9 to 21), omit paragraphs (2)(b) and (c) and subsection (3), substitute: (b) it is in the national interest to make the determination at that time.(151) Schedule 1, item 9, page 101 (line 24), omit "relevant", substitute "Commonwealth".(153) Schedule 1, item 9, page 102 (line 1), omit "relevant", substitute "Commonwealth".(154) Schedule 1, item 9, page 102 (line 8), omit "relevant", substitute "Commonwealth".(155) Schedule 1, item 9, page 102 (line 28), omit "relevant", substitute "Commonwealth".(156) Schedule 1, item 9, page 103 (line 2), omit "relevant", substitute "Commonwealth".(157) Schedule 1, item 9, page 103 (line 4), omit "relevant", substitute "Commonwealth".(158) Schedule 1, item 9, page 103 (line 6), omit "relevant", substitute "Commonwealth".(161) Schedule 1, item 9, page 103 (line 28), omit "relevant", substitute "Commonwealth".(162) Schedule 1, item 9, page 104 (line 7), omit "relevant", substitute "Commonwealth". (163) Schedule 1, item 9, page 104 (line 9), omit "relevant", substitute "Commonwealth".(164) Schedule 1, item 9, page 104 (line 27), omit "relevant", substitute "Commonwealth".(165) Schedule 1, item 9, page 105 (lines 4 to 14), omit subsection (7), substitute: (7) The Commonwealth Minister must, as soon as practicable after making a determination, and in any case within 15 sitting days, cause a copy of the determination, together with reasons for the determination, to be laid before each House of the Parliament.These amendments go to the question of ministerial intervention in the arbitration process. The government is trying to get away with a proposal whereby a state or territory minister may intervene in the arbitration on the right to negotiate if the bodies fail to make a determination within a four-month period. They are also trying to ensure it happens without notice requirements.The criteria for intervention are that the arbitral body is unlikely to make the determination within a reasonable period or it is in the state or territory interest, or in the national interest if it is a Commonwealth matter, to make the determination at that time. If you really interpret the provisions that govern the operation of this discretion, you find that, basically, this is a blank cheque to state and territory ministers to intervene at will and for whatever reason.There are procedural provisions which require the minister to invite submissions with notice for receipt of submissions at the minister's discretion, and seven days in which to respond. Once again, the minister is not required to consider the submissions. You wonder what basic lessons in administrative law the people who drafted this legislation really had. You would not get away with this in most courts in the country.We are concerned, as before, about a conflict of interest. There is no requirement to consider inadequate notice. Our amendments are on the basis that we do not favour high levels of intervention in a process which is best to be seen as a controlled or well-organised negotiation, mediation and arbitration process. As a consequence of all the reasons I have mentioned, we do not think that state ministers should have these sorts of powers.Section 36A has been amended to give the responsibility to intervene to the Commonwealth ministers. What 148 does is replace paragraphs 2(b) and (c) and subsection (3) with paragraph (b) which brings the basis for intervention into line with the gravity of the act of intervening in arbitration—that is, it must be in the national interest to make the determination at the time. Amendment 165 replaces subsection (7) to overcome the natural justice problems in the government's proposals by allowing the minister's determination to be open to public scrutiny by causing a copy of the determination, with reasons, to be tabled in the parliament. It is very limited public scrutiny, I must confess. It is something the government should be able to tolerate.21:59:002452Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—Senator Bolkus's somewhat fatuous remarks about the drafters of these provisions prompts me to speak on this issue. It does suggest that Senator Bolkus is probably not aware of how the world's greatest mining industry has been created in this country. That is wholly based on state administrations—Labor and Liberal—having ministerial determinations on whether or not mining leases proceed. To suggest that there are not enormous constraints on this particular ministerial determination again shows a refusal to read 36B, which sets out quite rigorous conditions before the minister can intervene.This ministerial determination procedure in section 36A, as controlled and qualified by section 36B, is our proper and responsible response again to what we have identified and what ATSIC itself has identified as very major problems with the practical operation of the right to negotiate process where everything goes in one end and nothing comes out the other. It clearly is essential if you pay attention to what is happening with the right to negotiate process to have a mechanism of this kind. As I say, the minister must comply with all the provisions in section 36B before terms of notification and consultation, et cetera, before he or she can make the determination. So Senator Bolkus, frankly, has not fairly represented the proposal. I respect his right to oppose it, but I think he should more fairly represent the proposal.22:00:002453Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—If you are looking for arbitrary decisions, I think the warden's court, especially in Western Australia, is a really good example of arbitrary decisions by ministers from time to time. If you want certainty, do not give it to a minister each time. People can go through all the steps—they can do all of their requirements, they can appeal on reasonable grounds, they can get the community support—and the warden's court can say, `Yes, that is reasonable.' Then it goes to the minister with advice and the minister says, `No.' Basically, if you looking for certainty this ain't it. I support Senator Bolkus's amendment.Amendments agreed to.22:02:002453Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I will not be moving 133 or 134A. Senator Bolkus may well be moving 167, 170 and 172. The next one I would be seeking to move would be 135A.22:02:002453Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I move:(167) Schedule 1, item 9, page 105 (after line 27), after subsection (1), insert: (1A) A determination may, with the agreement of the parties, provide that particular matters that: (a) are not reasonably capable of being determined at the time the determination is made; and (b) are not directly relevant to the doing of the act; are to be the subject of further negotiations or determined in a specified manner. (1B) If the matter is to be determined by arbitration otherwise than by the arbitral body, the parties must agree to the manner of determination or, in the absence of agreement, the matter must be determined by the arbitral body at an appropriate time. Example 1: A mining lease may be granted subject to quantification of compensation etc. at a later time by an independent arbitrator. Example 2: A mining lease may be granted subject to site clearance procedures to be determined by a third person.(170) Schedule 1, item 9, page 106 (after line 5), at the end of section 38, add: (3) If the act is with respect to a right the creation of which may constitute an earlier act for the purposes of section 26D, the determination may include a condition that: (a) will provide for further negotiations in respect of an act that constitutes a later act for the purposes of that section; or (b) will provide that this Subdivision will apply to the later act. (4) Proceedings may be taken in a Court of a State or Territory in relation to a determination under this section: (a) for specific performance of a condition of the determination; or (b) for a declaration that the conditions of the determination have not been complied with by non-native title parties; or (c) for an injunction or prohibition restraining those parties from continuing to do things under the act or the later act; or (d) for damages for the doing of the things or for a failure to comply with the conditions, or both.(172) Schedule 1, item 9, page 106 (lines 32 and 33), omit paragraph (d).I note that there are some Greens-Democrats amendments with respect to this. We have concerns with the government's proposals here. Their amendments fail to deal with a serious shortcoming in the Native Title Act that the arbitral body cannot refer matters within an arbitration to future arbitration should the need arise. This has caused problems. If we are worried about workability, this has caused problems in WA where an exploration and a right to mine arise out of same grant. Hence, the exploration and the right to mine need to be dealt with concurrently, despite the fact that the right to mine may never be acted upon.Currently, if a matter before the arbitral body relates to exploration, the body cannot make a determination dealing with exploration and then refer any right to mine issue which may arise out of a grant to future arbitration. It is a serious constraint on workability. Our amendments go towards overcoming that.Amendment 167 inserts subsections into section 38 to give the arbitral body the power to include as part of a determination a condition that particular matters be the subject of future negotiations or an agreed form of determination processes. Amendment 170 inserts a subsection into section 38 to prevent an arbitral body to make a determination which has conjunctive effect so long as the determination provides for further negotiations or the right to negotiate to apply. It also inserts another subsection into 38 to provide remedies to all parties to an arbitral determination to enforce conditions or seek damages for failure to comply with conditions of an arbitral determination. I commend the amendments.22:04:002454Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I simply indicate that this is another one of those feel good, utterly impractical amendments that the whole right to negotiate process is being subjected to. We think it is not going to work. It is impractical. It leads to more indecision, more lack of uncertainty, about the whole determination process. We oppose them.22:04:002454Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Even though I was not going to move it, I certainly support it.Amendments agreed to.22:05:002454Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I move:(135A) Schedule 1, item 9, page 105 (line 28) to page 106 (line 5), omit subsection (2).Amendment 135A indicates that arbitral bodies can work out payments with reference to profits made, income derived and anything produced. This was supported by the Senate last time. I think that is not an unreasonable means by which the arbitral body can work. If they are going to work out payments for compensation and so on, then it is not unreasonable that they have in mind what kinds of benefits are being gained by people and the kinds of activities involved. I do commend these amendments again to the Senate.22:05:002454Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—As indicated last December, the government is completely opposed to giving the arbitral body that sort of authority and power. The Keating-Labor government specifically excluded that sort of decision making power from the arbitral body. We agree with the Keating government on this matter and do not believe that should be within the scope of the arbitral body.22:06:002454Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I know that this was a matter that was adopted in December. But since then I have had another look at it, too. I am a little bit concerned that it might have Brandy problems. I am not sure whether that is the view of the minister or Senator Bolkus. But it does seem to me, on the face of it, that it could well run into those problems as identified in the Brandy case.22:06:002454Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—We certainly do think there are constitutional problems with this issue. That is one of the reasons, among many, that we oppose it.22:07:002454Bolkus, Sen NickSenator BOLKUSXE4SAALP00—Constitutional problems have never stopped you before in this debate. It is interesting to see that you are creating a precedent now with this one. It has in fact been crafted in a very detailed manner by the people working with us and with the Indigenous Working Group, people who actually worked through the Brandy problem. It did occur to me while Senator Harradine was talking about Brandy problems that people may be left with the impression that someone may have a drinking problem. It obviously has nothing to do with that.This is something which has been developed with the determination of the Brandy case in mind. I must say this Brandy problem has not really been raised with us before but the Queen's Counsel who drafted this legislation were very keen to ensure that such a problem did not arise. I wonder, Senator Harradine, if we can defer the vote on this for a few moments. I will get that Brandy aspect looked at by some of our lawyers and see if we can come back to you before the end of the debate. I know it will not be that long the way we are going, but can I suggest we defer this?22:08:002455Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—The lawyer who ran and won the Brandy case has also looked at this. As you say, it has been carefully worded, and we seem to think it will not be a problem. But I am happy for it to be deferred for later consideration.22:08:002455Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—Given the hour and the fact that we are approaching the end of this debate, I do not think it should be deferred. There could well be a Brandy problem, if it amounted to what was seen as compensation. There would be other problems if it involves a Commonwealth official ordering a company to pay part of its profits to somebody else, which we think could well go way beyond the competence of a Commonwealth mediation service, which is what this is. We think there are significant problems. They were clearly in the mind of the Keating Labor government when it decided, quite specifically, to exclude that sort of authority from the Native Title Tribunal acting as an arbitral body in the right to negotiate process. We think they were right.22:09:002455Bolkus, Sen NickSenator BOLKUSXE4SAALP00—If the compensation problem is the only one the minister has—JX4MINCHINSenator Minchin—I have another one.XE4Bolkus, Sen NickSenator BOLKUS—You have got two problems; I have a lot more than that. I do not think we will waste all that much time if we defer it until later on in the debate—it may only be 20 minutes the way we are going.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator McKiernan)—I will take it that Senator Bolkus has moved the deferral of consideration of this amendment for now. There being no objection, the amendment is deferred.22:09:002455Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I move:(173) Schedule 1, item 9, page 108 (after line 4), at the end of section 40, add: (2) Subsection (1) does not apply to an indigenous land use agreement, or an agreement in writing referred to in paragraph 31(1)(b), that identifies the agreement or determination affected.Opposition amendment 173 basically provides for the parties to a determination to agree, by way of a subsequent ILUA or a section 31(1)(b) agreement to vary the terms of the original determination. This is a process which is totally voluntary and, really, in good faith, and the government should not have any problems with it.Amendment agreed to.22:11:002455Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I move:(137) Schedule 1, item 9, page 106 (line 24), at the end of paragraph (1)(a), add: and (vi) the natural environment of the land or waters concerned, to the extent that it, and the likely effect of the act upon it, are relevant to the native title rights and interests claimed or determined; (aa) any assessment of the effect of the proposed act on the natural environment of the land or waters concerned that is relevant to subparagraph (a)(vi): (i) made by a court or tribunal; or (ii) made, or commissioned, by the Crown in any capacity or by a statutory authority;Amendment 137 relates to the criteria for arbitral bodies. I draw the attention of the committee to section 39 on page 106 of the bill, which deals with criteria for making arbitral body determinations. We are asking that when a determination is required, the arbitral body have the ability to take the environment and the impact on the environment into consideration. This is not such a radical idea; it is already in the act. The National Indigenous Working Group have strongly requested that this should be the case. I know we can probably expect the tired old story from the minister that this is about land, not about the environment. But it is in the act.It is suggested that somehow or other people can be interested in the effect on the enjoyment of native title parties—way of life, culture and traditions, the development of social, cultural and economic structures, freedom of access, any aerial site, land or waters concerned with significance—but somehow not be worried about the impact on their environment. That is what it is saying. I find it quite extraordinary that the minister can suggest or maybe even consider that indigenous people are not concerned about their environment, that they do not want to look after it and have some say about it in relation to arbitral determinations or make sure that arbitral bodies can take these issues into consideration when they make their determination. It is quite logical and I commend it to the committee.22:13:002456Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—We oppose this amendment. One of the problems with this extraordinarily legalistic process that is the right to negotiate is that it gives endless opportunities for legal challenge on the basis that if the arbitral body has not taken proper account of one of these criteria then you can go to the Federal Court and challenge it. Of course, that is what is happening. That is why it is taking years for anything to come out of the process. We believe that the criteria we have set down in section 39 are appropriate, given that we are dealing with the impact on native title of the process. There are other environmental conditions and regulations which every mining project must comply with.Section 39 sets down that the arbitral body must take into account the following: the effect of the act on the enjoyment by the native title parties of their determined native title rights and interests; the way of life, culture and traditions, et cetera. This is an unnecessary amendment. The impact on the native title claimants and their way of life is more than adequately catered for in the criteria laid down. This simply adds another process to it—another requirement on the arbitral body which they must take account of. We think it simply adds to the complexity of the process and adds to the opportunity for legal challenge to the whole arbitral body process.22:14:002456Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Even warden's courts are required to listen to arguments on the environment. Obviously, standing has to be established, so it is bizarre to suggest that an arbitral body determining native title is not required to at least take into account the concerns of the claimants in relation to the impact of a proposal on the environment. Why should they be concerned about it? Because it has this impact on the environment which may have impacts, for instance, on their quality of water or have some other impact down the track on the ability to hunt or fish or something of that nature. The reality is that you cannot really separate these economic, environmental, cultural and social factors. To do so is quite artificial.22:15:002456Brown, Sen BobSenator BROWNQD4TASAG00—I totally agree with that. As Senator Margetts said, the indigenous people want this provision added. It has to be noted that two major provisions to be considered here are: the economic and other interests to Australia or state or territory concerned; or detriment to any other person. Note the word `economic'. I suppose we have to expect that this government would not want the environment to be in there because it says that that is going to lead to further litigation, but the economic considerations will potentially lead to a whole range of complexities. Anyway, there is the provision for `any public interest in the doing of the act', so I think it is a bit specious for the government to say that the environment should not be included in the public interest or that mining is a matter where the environment should not be under consideration by an arbitral body. Of course, it should.22:16:002456Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I simply add that this arbitral body process is about the impact of the act on native title. Mining companies have to go through very rigorous environmental controls before they can even get to this point. The criteria also provide that the arbitral body can take account of any other matter that the arbitral body considers relevant. So to the extent that the arbitral body considers the impact on the environment in terms of the native title rights and interests claimed or held then obviously the environment can be taken account of. But this is about native title; the environment is a separate regime for mining.22:17:002457Harradine, Sen BrianSenator HARRADINE6H4TASIND00—Section 39, as has been said, sets out the criteria for making arbitral body determinations. As I read it, it is pretty all-encompassing. It seems to me that it does have the power to do what is suggested in Senator Margetts's motion but to do it in a way which relates to the native title interests of the parties. The clause already indicates that the arbitral body must take into account various issues:the effect of the act on:(i) the enjoyment by the native title parties of their determined or claimed native title rights and interests;I suppose even under that the arbitral body may take into account what is contained in Senator Margetts's amendment. The clause continues:(ii) the development of the social, cultural and economic structures of any of those parties; and(iv) the freedom of access by any of those parties to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions;The catch-all is in (f) which says:any other matter that the arbitral body considers relevant.I do have a feeling that because this is a native title amendment bill we should really focus on those areas qua native title rights and interests, because it may well be that the consequence of the acceptance of the amendment is that the arbitral body may take into account an assessment of the effect of the proposed act on the natural environment of the land or waters concerned that is relevant to subparagraph (a)(iv). Whilst (a)(iv) does talk about effects of the act upon it that are relevant to the native title rights and interests so claimed or determined, I would like to ask Senator Margetts whether she believes that that would specifically relate only to the rights and interests of the native title holder. If that is so, I would be inclined to support the amendment. If it is not, if it is to take into account the arbitral bodies somehow taking some independent decision as to how the determination will `affect the environment' without reference to the rights and interests of the native title parties, if it is without reference to rights and interests of the native title bodies, then I would be concerned about that. If it is any decision in this matter which is specifically related to the environment as it affects the rights and interests of native title holder and I can have an assurance on that, then I think it has merit.22:21:002457Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I thank Senator Harradine. It has been fairly carefully worded. It was, as I mentioned, specifically at the request of the National Indigenous Working Group because they believe it is very important. It has been carefully worded concerning relevance. It says:. . . to the extent that it, and the extent of the act upon it, are relevant to the native title rights and interests claimed or determined;So we are talking about the interests claimed, and that obviously means that the arbitral body is not being asked to look beyond that. It is being asked to look only at what we are asked by indigenous groups to take into consideration: `issues related to the natural environment of the land or waters concerned.' As I say, yes, it does say `relevant to the native title rights and interests claimed or determined.'As Senator Harradine has indicated, there are abilities for arbitral bodies to receive evidence other than that. This basically says that they should take this into account. I do not know if I can guarantee anything about an arbitral body—I am not sure that anyone can. But in so far as we have tried to carefully word that to restrict it to those issues relevant to the native title rights, I would think it is not going to be able to range far and wide and be a general medium for environmental issues other than those relevant to the native title rights.Amendment agreed to.22:23:002458Bolkus, Sen NickSenator BOLKUSXE4SAALP00—With respect to 135A, which we deferred just a few moments ago, our advice from people who have been leading these cases in the courts is that our position is sustainable constitutionally. The provision that we seek to effect is on page 105 of the government's bill. If you look at 38(1) it says that:. . . the arbitral body must make one of the following determinations:(a) a determination that the act must not be done;(b) a determination that the act may be done;(c) a determination that the act may be done subject to conditions to be complied with by any of the parties.Those provisions obviously have the direct implication that the arbitral body does have a capacity to make determinations in respect of a whole range of factors and conditions. It could very well be argued that amongst the conditions that it can make are financial conditions. The concern we have is with subsection (2) which basically says determinations can be made over a whole range of things, but, under subsection (2), you cannot look at the profits, the income, or anything that is produced, of any party in relation to land or water concerned.Basically, we have a government that, on the one hand, wanted to ensure that when making a determination, either a minister or a tribunal could look at the impact of native title on the financial viability of a particular company, but, at the same time, denies the tribunal the power to make any determination as to conditions on which native title or interests can be protected on financial grounds. That is one of the problems we have.In terms of determinations: we are not saying that determinations that we would like to see as part of the capacity of the arbitral body—that is, financial conditions—should have any different strength, status or effect than any other determination. The way determinations are treated is provided in section 41(1) which basically says that the determina tion or agreement has effect as if the conditions were terms of a contract amongst the negotiating parties.So, Senator Harradine, we are not saying that the determination should have any augmented power or effect; we are saying it should have the same power and effect as any other determination made by the arbitration body in this particular proceedings. As a consequence, I would argue very strongly that, if the government's regime and the effect that the government provides for determination is sustainable constitutionally, then so, of course, would be any determination as to financial conditions. We are not arguing that those determinations have any extra strength. On that basis I think the committee should in fact be satisfied that the concerns as to constitutionality are not really well founded.22:27:002458Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—Mr Chairman, Senator Bolkus's criticisms of section 38 are fascinating given that they exactly replicate section 38 in the current act. Subsections 38(1) and (2) of the Native Title Act are what is in the bill, and 38(2) in the current Native Title Act says:Profit-sharing conditions not to be determined(2) The arbitral body must not determine a condition under paragraph (1)(c) that has the effect that native title parties are to be entitled to payments worked out by reference to:(a) the amount of profits made; or(b) any income derived; or(c) any things produced;by any grantee party as a result of doing anything in relation to the land or waters concerned—You are apparently now of the view that what you did in government is wrong and inappropriate. Perhaps you should go back and look at the legal advice you got in 1993 when you drafted these provisions. We do think you were right then to limit the kind of determinations in the way proposed.Senator Chris Evans interjecting—JX4Minchin, Sen NickSenator MINCHIN—We will not revisit that debate. Can I say in April 1998 that you were right then and we support what the Keating Labor government did on this issue. I think this was motivated by the problem whether or not it is constitutional, that either this is compensation—and I think there is a judicial problem of an arbitral body, a non-judicial body, determining compensation—or it is in effect a tax. Again, it is a Commonwealth official effectively taxing a mining company. So there are real problems with this. That is why you did not put it in; that is why we are not either.22:29:002459Bolkus, Sen NickSenator BOLKUSXE4SAALP00—The obvious point in response is that, if our starting and ending point is the Native Title Act, you would not be moving amendments to it and we also would not be moving amendments to it either. It is accepted, I think by both sides of the parliament, that improvements need to be made. This is one of those areas where we think they do need to be made, as in so many other areas where we moved some 359 amendments the first time and almost 200 this time.Amendment not agreed to.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator McKiernan)—We have a number of amendments, starting with government amendment No. 46 and then opposition amendments Nos 178, 146 and 31 from Senator Harradine. The opposition, Democrat-Greens (WA) and Harradine amendments all differ from the government amendment. Does the government wish to proceed with its amendment, or shall we proceed with some of the other amendments?22:30:002459Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—We wish to proceed. Before you arrived, Mr Chairman, I moved all the government amendments—and that was a couple of hours ago. We have dealt with and agreed to amendments Nos 38 to 45. There are only amendments Nos 46 and 47, which I moved before. I noted them before. Amendments Nos 45 and 46 deal respectively with situations where an alternative state or territory regime, approved under section 43 or 43A of the act, is amended so that it no longer satisfies the criteria set out in those provisions, and amendments Nos 45 and 46 are similar in that sense. I am not quite sure why amendment 45 is acceptable and amendment 46 is not.As to the criteria to apply where a state or territory regime no longer satisfies the criteria, it sets out what we think is a sensible mechanism for dealing with that situation. They give the relevant state or territory minister a maximum of 180 days, starting from the time the Commonwealth minister notifies him or her that the alternative regime no longer complies with the act, to amend the state or territory regime so that it, again, complies with the act. The only situation in which a state or territory will be given more than 180 days in which to amend its regime is if, before the expiration of the 180 days, the Commonwealth minister has determined in writing that a further period be given and, at the end of the 180 days, if he or she is satisfied that the state or territory minister is using his or her best endeavours to amend the provisions to satisfy the Commonwealth's criteria.We think an arbitrary absolute cut-off does not take account of the fact that, if legislation is involved, with most parliaments not being controlled by the government, there has to be some capacity to allow an extension, if that is necessary, in order to enable the relevant government to change the legislation circumstances which it may not necessarily control.22:33:002459Bolkus, Sen NickSenator BOLKUSXE4SAALP00—The difference between amendments Nos 45 and 46 is that amendment 45 amends section 43. I gather that, as a consequence, section 43 is not to be affected by the debate on sections 43A and 43B, the exceptions to the right to negotiate. If the opposition, Harradine and Democrat-Greens (WA) amendments are successful, you will not have a section 43A. As a consequence, you will not need amendment 46. So I make that point at the start.At this stage, we can probably move to what is the critical issue before the Senate tonight, and maybe Senator Harradine would like to start off here, otherwise I can continue. I will continue and, in doing so, note that the three sets of amendments are identical and are in conflict with government amendment No. 46. Essentially, we are talking about whether the right to negotiate should continue to apply with respect to pastoral leases. All along in this debate, we have said that it is our view that a substantive and effective right to negotiate should be available to indigenous claimants, native title holders, under this act, and it should be made available in accordance with the provisions of the act.To do what the government wants to do would be to reduce the effect and the operation of the right to negotiate to some six to eight per cent of Australia. That would be to subvert the High Court decision in Mabo, as it would be to undermine the High Court decision in Wik. The government seeks to exclude the right to negotiate from pastoral leases, both current and historical, and from national parks and forestry reserves so that it applies to a thin sliver of Australia. It wants to replace that. Also, this is the second arm of the government's objectives here not just to reduce it in terms of operable territory but also to replace the right to negotiate with respect to its operation and to basically provide, as the government has claimed quite often, equivalent rights to those coexisting title holders.As ATSIC has made very clear this week, we are talking here of two different interests. We are talking here of a leaseholder; we are also talking here of a native title holder—the underlying title to the land. For it to be respected, there needs to be due recognition given to those who hold such title. Due recognition means an effective, meaningful and substantive right to be involved in the process. The right to negotiate under this legislation is not the unlimited, uncontrolled common law right to pursue matters. It is a much more constrained alternative to the common law. It is not a veto power, as I said earlier. In fact, it is an obligation on parties to proceed in a timely manner and within the constraints. The government has mentioned concerns. We have mentioned concerns. In fact, just about everyone in this parliament has mentioned concerns with the operation so far.We have had an exhaustive debate. By the time we finish this today, we would not have broken last year's record, but we probably would have gone to about 30 hours or so—last year we went to about 41 hours. It is not a bad work over for legislation like this. But, at the end of that, and over objection from many of us in this place, the Senate has given the government an enormously high threshold test. We have given it provisions that control the processes and the applications in such a way that the evidentiary and procedural requirements, as passed by the Senate, will make it much more difficult for title interests to pursue their cases under this law. In fact, quite often, it will be a matter of judgment for them as to whether they pursue it under this law or whether they pursue long established common law rights in the Federal Court and the High Court of Australia.Our obligation is, I think, to ensure that a balance is struck here that makes this legislation acceptable to native title interests. To the extent that we do not, it will not just be they who suffer the consequences; it will be the mining interests and the pastoral interests that want certainty and want it quickly that will suffer. It is three months in an expedited procedure, six months in a normal right to negotiate process, particularly when we talk about these high hurdles that now have to be overcome.The other thing to be said about the right to negotiate is, as I said earlier, that it is the heart and soul of native title. Native title is about respecting those who have prior rights and interests and continuing rights and interests in this land. It is about respecting indigenous rights. It is about doing what the rest of the world is doing in respect of indigenous people, that is, paying them and their rights due respect in a process that deals with their land. It is about dealing with them as human beings and not as cattle. It is about respecting their right to fish, their right to live, their right to exist on land as much as, if not more than, we respects the rights of those who have authority to fish, to mine and to plunder those resources.We should not only be about protecting the backyards of white people; we should also be about protecting the backyards of indigenous Australians. We should not only be about protecting the rights of pastoralists to develop the land; we should also be about protecting the coexisting interests of black people. We should not only be about protecting the rights of those who have licences and permits to fish and to quarry; we should also be about protecting the rights of indigenous Australians to fish, to hunt and to exist on their land. This is what it is about. This is what Wik was about and is about. The government's legislation basically denies any respect for the core of native title. It denies any respect for the consequences of it.So we have those problems. I also have to say that legislation like this which is so discriminatory—identified as such by the parliamentary counsel to the government—is legislation which begs challenge in the court system, at a time when the Australian Government Solicitor has advised this government that the impact of the Kartinyeri case last week will leave well open the definition of the race power, the impact of the race power and the implications of the race power. To ask for cases to go to the High Court is something that non-indigenous Australians and other stakeholders want very much as a last option. It is basically like playing Russian roulette with the interests of stakeholders in this process. For these reasons we think the government is going too far. We think there needs to be an effective right to negotiate.Let us acknowledge as we go on in this debate that we are talking about a right which, under this legislation, will be exercisable in so many less circumstances than before. It is no wonder the working group walked out on this parliament and this government. It has also acknowledged that what we are talking about here is coexistence. If the government implements Wik in the way that it should, we would be talking about coexistence, and the decision of the High Court would be subservient to the rights of other interests and stakeholders. We are basically asking for a degree of equity and a degree of constitutionality. Unfortunately, the government is not giving us that.We have spent an enormous amount of time over recent weeks trying to develop alternative models. There is no secret: we have tried to develop a model which still pays respect to the substantive right to negotiate. People have been working day and night to do that. We felt it was important to try to develop one indigenous working group. We thought it was important to see if they could work an alternative model through. But, at the end of the day, I have to sympathise with Senator Harradine. We have been consistently hitting brick walls on this most important issue. We have been hitting a brick wall with a government which, at the end of this debate, will have got close to 90 per cent of what they wanted through the parliament.In anyone's language, close to 90 per cent is not a bad outcome, but let us not drive Australia to a race election out of stubbornness, obduracy, insensitivity and discrimination. The challenge really is to the government now. The government will get most of what it wants through this parliament. This is at least something that indigenous Australians can and should walk away with. Thank you.22:42:002461Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I endorse what Senator Bolkus has just said, and I want to add a couple of points. Schedule 43A is an attempt by this federal government to hand over its responsibility to the states and territories. If the government want to have a re-write of the history of the way state governments have treated indigenous people in this country, then I am happy to give it to them. But I think it is sufficient to say that the reason this federal parliament has had to take over responsibility for indigenous rights in this country is that state and territory governments in this country have, for 100 years at least, failed.Why was the 1967 referendum necessary? It was because people began to see the pictures of Aboriginal communities administered by state governments where Aboriginal people were starving and riddled with disease. They were in fact being neglected. Why did we have to have Mabo? Why did we have to have the Mabo and Wik High Court decisions? It is because state governments abrogated their responsibilities. They not only abrogated their responsibilities but also went out of their way to make sure that Aboriginal people did not receive the rights they were entitled to.There is no way that this federal parliament should ever contemplate handing back the responsibility for Aboriginal rights to the state governments of this country. There is no way that a federal parliament in this country should contemplate allowing state governments again to perpetrate on Aboriginal people the kinds of injustice recorded in so many different ways in so many histories. I could bring you in a stack of books this high just in regard to my home state of Queensland. I hope that the Senate is going to oppose these sections. Of all the sections in this whole section about the right to negotiate, this is the one that brings out the most passion in me—the idea that this federal government should abrogate its responsibility to those states who themselves have been part of the regime of injustice and oppression.If those state governments at some time in the future begin to show that in fact they can accept their responsibilities, perhaps then we can revisit this whole issue. Certainly, at the present time, there is no evidence to suggest that we should take the action which is proposed in this section. We certainly support the amendment of the opposition, of the Greens, Democrats and Harradine, that we oppose sections 43A and 43B.22:46:002462Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—In this instance we have a wide agreement within the Senate in relation to sections 43A and 43B. I do not intend to canvass again the arguments which have been very well put by my colleagues. It is, as has been mentioned, pivotal. It is the whole issue in relation to pastoral leases and the outcome of the Wik decision. It does seem quite extraordinary that we would be coming to the chamber here after the Wik High Court decision and being asked to actually remove when, in 1993, the quid pro quo for removing or shoring up other people's rights was to put in legislation some rights to negotiate.Of course, we still do not know under common law what the ruling on the right to negotiate might have been. But it seems extraordinary that, after the Wik decision, we are coming into this chamber and are being asked to remove the right to negotiate on pastoral leases. It really is not logical or fair or just. It is certainly not supported by the Greens (WA).22:48:002462Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I will leave some remarks that I need to make to the parliament till the third reading stage. This certainly is a very key area in the legislation. The government's explanatory memorandum advises that the amendment bill permits the states and the territories to implement alternative provisions for future acts affecting leased or reserved areas. States and territories will only have to give native title holders the same procedural rights as other parties with an interest in the land, for example the holder of a non-exclusive pastoral lease.When we are talking about procedural rights I want to say very clearly that there is no true equality of procedural rights if the relevant tribunal, under its statute, may only take into consideration those things which pastoralists, for example, are specifically concerned with. I will come to that in my comments on the third reading.The amendment that is currently before us I believe to be unacceptable. Native title holders whose lands are subject to pastoral lease, included in a national park or subject to Aboriginal statutory grants, should not be deprived of the right to negotiate. As I think I said on a previous occasion, in respect of the existence of native title and determined native title holders, it is of very little use to be a native title holder unless there is a right to negotiate, and an effective right to negotiate in respect of the specific interests and rights of those particular holders. But I do not intend to say any more at this stage. I also signify to the committee that I will oppose section 43A.22:51:002462Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I would like to make a few remarks in relation to section 43A because it is obviously a very significant part of the bill and one of the four critical areas from the government's point of view. We have to go back to the starting point, which is the Native Title Act, and the presumptions on which it was based. As the then Prime Minister, Mr Keating, said, the then government's view was that under the common law past valid freehold and leasehold grants extinguished native title.As many Labor and former Labor members have said, it was clear that the Native Title Act was written on the presumption that native title did not survive on leasehold land. So what the Native Title Act was based on was dealing with native title on vacant Crown land and Aboriginal land. That is clear from everything in the act itself. As I said before, the procedural rights that attach to native title were determined to be those that attach to holders of ordinary title, because it was thought that it could only apply on vacant Crown land and Aboriginal land.There was this exception made that, in addition to mining and compulsory acquisitions of native title for making grants to third parties, there would be this special statutory right to negotiate process for those two things. We know that it was never contemplated by the government or the parliament that this right to negotiate process would apply on pastoral leases. That is the logical consequence of what was said by the government at the time and the whole premise of the act.The Wik decision by 4-3 decided that native title was not necessarily extinguished on pastoral leases. It may well be, and there is still no native title determined on pastoral leases. As a result of our accepting that decision, you have to then make the decision of what procedural rights should attach to native title that may have survived on a pastoral lease. You must, in so doing, take account of the nature of those rights and what they may amount to. The High Court itself has said that native title may not necessarily be extinguished but where it survives, if at all, on a pastoral lease, it is a yielding right. The rights of the pastoralists prevail over the native title, and the native title rights must yield. So you then have to work out what procedural rights should attach in respect of mining or compulsory acquisitions for third parties on a pastoral lease where native title may have survived.We take as our premise the starting point of the whole Native Title Act—that equality of procedural rights is the appropriate way to go. We do think that is vital where you are talking about coexisting rights. The fact is that, unlike the whole premise of the Native Title Act, we now must deal with the fact that we have coexisting rights—native title rights and statutory leasehold rights—on the same piece of land and we must work out how they are going to live together and share that land.We think it is fundamental to coexistence and reconciliation that there be equivalent procedural rights attaching to the statutory rights on the one hand and the native title rights on the other. You have to remember that, as a matter of the High Court's determination, there is a hierarchy of rights on a pastoral lease that involves the leasehold rights here and the native title rights there. That just flows from the fact that one is statutory and one is common law.What is proposed here by removing 43A is a complete reversal of that relationship in respect of the procedural rights that attach to those property rights when it comes to mining and compulsory acquisition. So the native title rights are way up here, having the full-blown right to negotiate process, and the pastoral lessee with the prevailing rights has a much lower level of procedural rights. That is a completely untenable, impractical and unworkable situation which we are fundamentally opposed to. We think it will do great harm and great damage on the 40 per cent of Australia where native title may have survived and which was not contemplated at the time the Native Title Act was passed.I would also point out that it is clear from all the evidence that the right to negotiate process is not working very effectively at all. ATSIC itself has recognised that. There are huge backlogs in relation to mining applications going through the right to negotiate process. It is the most significant Commonwealth impediment to the development of Australia ever imposed by any federal government. It does apply on vacant Crown land and Aboriginal land to the extent that they do not already have much greater rights—like the veto on half of the Northern Territory.It is an absolutely extraordinary proposition for this parliament to suggest that this whole process—which we know is causing this huge backlog of mining leases; as I said, in Western Australia, there has been an 80 per cent reduction in the number of leases being granted—must by law apply across 79 per cent of Australia. In effect, it would apply to all mining and all major developments, because the remaining 21 per cent is essentially our cities, towns and freehold areas. It is classic Canberra, ivory tower thinking, without any regard for the impact of the legislation passed by this parliament upon the rest of Australia. It is no wonder people in Queensland and Western Australia cannot believe what goes on in this parliament, because it does have no regard for the consequences of these decisions. This is the application of a quite extraordinarily legalistic process across 79 per cent of Australia in a way which discriminates against the pastoral lessees of Australia by granting superior procedural rights to people on the base of their race.The opposition says, `Don't worry. We've got a better registration test now, so what are you worried about?' A better registration test is a necessary but hardly sufficient condition for improving the inadequate operation of the current Native Title Act and the current right to negotiate process. As I have mentioned several times, to the extent that the new registration test does reduce the number of competing claims in any one area and may even with good fortune get it down to one claim in an area, that is no guarantee that we will improve the process.As I pointed out, the sons of Gwalia claim is just one example in Western Australia where, with just one native title claim to deal with, that company has been trying for 3½ years to get a mining lease out of the right to negotiate process. At every step of the way, there is an action being taken in the Federal Court to prevent that mining lease being issued. That is only one claim so, even if the registration test works in the way we hope it will be effective—if it does reduce the number of competing and overlapping claims and maybe gets it down to one—you have still got that sort of problem.So we think this is a completely inappropriate proposition. It is not the case that the right to negotiate was ever designed to apply on pastoral leases. It is appropriate for the parliament to decide in the light of Wik what sort of procedural rights should apply on a pastoral lease. We think the only fair and equitable approach is to say that there should be equivalent procedural rights—that the rights granted to lessees should be the rights granted to the native title holders so that together, in their coexistence, they have equal rights. Any other approach is impracticable, unworkable and potentially quite damaging to good relations in rural Australia.Progress reported.Business24642464Motion (by Senator Ian Campbell)—by leave—proposed:That the order of the Senate of 6 April 1998, relating to the hours of meeting and routine of business for 8 April 1998, be varied to provide that the question for the adjournment of the Senate not be proposed at 12 midnight but be proposed after the question for the third reading of the Native Title Amendment Bill 1997 [No. 2] has been determined.23:01:002464Ray, Sen RobertSenator ROBERT RAYUI4VICALP00—I think Senator Campbell just owes us a slight explanation to fill everyone in—for only a minute—on what the government's intentions are in terms of the rest of the time. Could I also ask whether you are going to move resolutions giving senators leave and those sort of formalities—or have you done it?10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—I am told that leave is not required for senators, because we are not sitting for less than two months, but there is some leave of absence to be sought for several other senators who have been away.23:01:002464Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—The government's intention is that it would be desirable if the Senate is able to conclude debate on the Native Title Amendment Bill 1997 [No. 2] tonight. It is quite clear that, although we are making progress, the progress is not fast enough to have it concluded by midnight, as senators have indicated that some third reading speeches will occur and I think the `right to negotiate' provisions, which are under debate at the moment, are obviously a major area of contention in this bill, and there are some ways to go before a resolution of that issue is to be made. It is clear that we will need to sit past 12, but hopefully not too far past 12.The other point that most senators will be interested to know is that the government has decided that the bill will not be returned to the Senate tomorrow and that once this bill has been dealt with, we will adjourn the Senate and honourable senators will be able to go home, well ahead of their friends in the other place. I am sure that will be greeted well. I commend this motion to the Senate.Question resolved in the affirmative.Committees2465246510000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Order! The President has received letters from party leaders seeking variations to the membership of committees.Motion (by Senator Ian Campbell)—by leave—agreed to:That senators be appointed to committees as follows:Community Affairs Legislation Committee Substitute member: Senator Boswell to replace Senator Synon from 8 April to 29 April 1998 and Senator Patterson from 30 April 1998 for the committee's inquiry into the Health Legislation Amendment (Health Care Agreements) Bill 1998.Community Affairs References Committee Participating member: Senator Evans from 24 April 1998. Substitute member: Senator Evans to replace Senator Gibbs from 9 to 24 April 1998.Environment, Recreation, Communications and the Arts References Committee Substitute members for the committee's inquiry into the powers of the commonwealth in environmental protection and ecologically-sustainable development in Australia: Senator Carr to replace Senator Schacht and Senator Evans to replace Senator Lundy Rural and Regional Affairs and Transport References Committee— Appointed: Senator Gibbs.Leave of Absence2465Motion (by Senator Chris Evans)—by leave—agreed to:That leave of absence be granted to Senator Gibbs from 3 April to 9 April 1998, on account of ill health.Notices246524652465Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—At the personal and earnest request of the Leader of Australian Democrats, Senator Meg Lees, I withdraw general business notices of notion 663, 681 and 848.Committees24652465246510000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Order! A message has been received from the House of Representatives acquainting the Senate of a resolution authorising the Joint Committee on Foreign Affairs, Defence and Trade to present a report to the Speaker when the House is not sitting.Bills2465r3062465Message received from House of Representatives acquainting the Senate that the House has disagreed to the amendments made by the Senate and has made amendments in place thereof and desires the concurrence of the Senate in the amendments made by the House.Ordered that consideration of the message in committee of the whole be made an order of the day for the next day of sitting.Miscellaneous24662466Consideration resumed.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Chapman)—The question is that government amendment No. 46 be agreed to.23:05:002466Harradine, Sen BrianSenator HARRADINE6H4TASIND00—Following Senator Minchin, I need really to put down clearly certain points which relate to the right to negotiate on pastoral leases. I do so against this background: the Senate in December last year omitted sections 43A and 43B from the bill. The Senate's position reflects a fundamental issue of principle for non-government senators and perhaps one of the crucial issues of the Wik debate, not `perhaps', definitely one of the crucial issues in the Wik debate.I have maintained all along that the benefits of native title are substantially diminished without the right to negotiate. On the other hand, the right to negotiate on pastoral leases represents a major issue of principle from the point of view of the government.The government, as the committee has heard from Senator Minchin, justifies its stand on two counts: firstly, that there should be equality of procedure rights for indigenous and non-indigenous coexisting land-holders; secondly, the existence of the right to negotiate on pastoral leases imposes an administrative burden which was not envisaged when the right to negotiate was enacted in 1993 given that it was generally believed to apply only to vacant Crown land and not pastoral leases. It would be a major backdown, it is considered, for either of those sides to concede the other side's position in such bald terms.Given the fact that neither side was likely to give way, I advised the committee that there were considerable discussions with a number of people throughout this parliament and outside of it, including with officials and my advisers. The purpose of these discussions was to find, if possible, an alternative mechanism to the right to negotiate which would provide protection to essential native title interests while at the same time maintaining the government's principle of equality of treatment and providing a different regime that is not called right to negotiate on other than vacant Crown land.It was thought that this could be achieved by a regime which had at least two principle features: firstly, that the regime would enable native title holders and claimants to have their native title rights and interests taken into account by the relevant state and territory bodies, for example, mining wardens, when governmental authorities make decisions as to compulsory acquisition of native title rights and the granting of mining tenements on pastoral leases; secondly, that regime would provide true equality of procedure rights.I want to explain what I mean by true equality. I believe that there is no true equality of procedure rights if the relevant tribunal under its statute may only take into consideration those things which pastoralists are especially concerned with, namely, whether the mining operation will affect the way in which the pastoralist carries on the grazing business, or only provide compensation for economic loss suffered as a consequence of the mining operation.True equality, I believe, will occur only if the tribunal is able to take into consideration those things which native title holders and claimants are especially concerned with, namely, whether the mining operation will affect native title rights and interests, including culture and spiritual and other types of interests. For example, if it is proposed to carry out the construction of a mine site or access roads, then that construction may destroy or damage culturally sensitive land features. Even though the construction may have very little or no effect on the pastoralist's grazing business, it would in that instance seriously impact on native title rights and interests. Even if such construction does affect the pastoralist's grazing business, the payment of compensation will usually totally remedy the loss. Such is not the case with the native title rights and interests in that example.There are a number of other examples that I could give, including the construction of a mine site on an area which may be adjacent to a waterhole and which may affect the waterhole. The way in which the pastoralist's interests could be considered and taken into account there would be for the building and construction of a dam upstream, whereas that particular site may be of crucial significance to the Aboriginal native title holders, for spiritual or other reasons.An analogy is provided by reference to people with disabilities. True equality demands that access ramps be provided for people in wheelchairs. To say that there is equality of treatment because everybody has access to the building by means of the stairs is patently ludicrous. Equality of treatment must be measured against people's needs. Pastoralists' needs relate to their grazing business; native title holders' needs relate to their native title rights and interests. There is no equality of treatment if the legislation does not reflect the essential difference between pastoralists' interests and native title holders' interests.Over a considerable period of time now, there have been attempts to achieve some sort of common ground so that, in the end, legislation with which people could work could go through this parliament. That is sufficient for me to say at this stage, but I thought that it was important to respond to Senator Minchin and the points that he made in respect of the government's attitudes on this particular matter and the reasons that the government holds to those attitudes. I believe it is important to understand each other's viewpoints. That is what I have tried to do over a considerable period of time but particularly focused over the past week. But unfortunately there is no outcome to report.23:13:002467Brown, Sen BobSenator BROWNQD4TASAG00—I thank Senator Harradine for that incisive comment on why the clause to eliminate the rights of indigenous people should not stand. That should be opposed. The most remarkable thing about Senator Minchin's contribution here is that I think he actually does believe it. I think that he has actually talked himself into believing what he tried to convince the Senate was the case. So let us get it into context. First of all, the High Court ruled that, when it comes to leaseholdings, the indigenous people's rights give way to the pastoralists' rights, that is, to cattle grazing. The cattle roaming across the country have a sort of precedence over the indigenous people who want to roam across the same country.That is where we began in this legislative round of the 1990s. But that caused somewhat of a revolt in terms of potential property rights for leaseholders, who had never had such rights, to look at the future and, inveigled by the potential big money pouring into this country from a whole range of developers, to say, `Gee whiz, the High Court has left other developments of the future way outside our leaseholdings'—which would be possible if we were to get state governments to upgrade these leaseholdings to a de facto freehold: the woodchipping operations, the cotton growing, the dams, the fish farms, the plantations and a whole range of things—`That High Court ruling sounds like we will have to take the indigenous people into account. They may have a say in what happens beyond cattle grazing where they have no say.'So in legislation in this place in 1993—and now here again—it was decided to solve that problem by completely eliminating, wiping out, the interests of the indigenous people for not only a veto but a right to negotiate; that the leaseholders' rights prevail if they are going to change the land of the indigenous people who have been there for thousands of years.The governments, Labor and Liberal, argued that this was a proper thing to do to protect the rights of the people who lived in the bush and whose livelihoods were there—people like Kerry Packer, who this week must have been away from his farm for a while as I note that he lost $1 million on the gambling tables in Rio. He did tip the croupiers $10,000. But apparently his interests, as far as leaseholdings are concerned, need to be given precedence over those of the indigenous people who are actually out there in the bush, who want their connection with the land and who have been there for thousands of years. It appears also that people like the outback interest holder, the bush leaseholder, the Sultan of Brunei, has a greater direct interest in the land of this country and should get more rights than the indigenous people who have been there for thousands of years.And then after that round, Senator Minchin explained to the committee a while ago, `It is not fair. The indigenous people have rights up here and the pastoralists' rights are down here.' We have just been through a process where all those rights of indigenous people to negotiate have been eliminated, and he can still come in here and mount an argument that the indigenous people are better off.How can he do that? Can he do it by arguing for the people in the bush like the Sultan of Brunei and Kerry Packer? No, he has to go to the big end of town. He goes to the cluster of big glass towers around the Stock Exchange that are owned by the mining companies and says, `I note that you have an interest out there in the bush. There is the potential that the indigenous people, through this High Court ruling, might have a say on your interests, and I am going to have a dickens of a job trying to explain that. Ah, I have a plan. I will try to hoodwink thinking Australians by saying, "It is not fair. These leaseholders"—they are not freeholders—"don't have a right to a say when it comes to mining, so the indigenous people shouldn't have a right either."'And so Senator Minchin compounds villainy on villainy, gets up with a straight face and explain all this and thinks that people are going to swallow it. I think he has swallowed it himself. He sounded so convincing. But he is not going to convince the indigenous people of this country who are left under his plan, under this bucket loads of extinguishment, with nothing but an attachment which is recognised—no power on their homelands—and I submit he is not going to convince any Australian who hears what this is divestment of rights is really about.Of course, the Senate should not be supporting this provision to eliminate what little is left of the indigenous people's power to have a say—no veto, just a negotiating right in regard to what happens to their homelands in the future. Without this little morsel, which is all that is left, they would have no powers at all. Yes, they can be consulted, they can be given information about things, but when it comes to actually having a say in what happens to their country, as it is totally transformed in the years ahead, they have nothing.As Senator Woodley said earlier, if you do not have negotiating rights, you really do not have native title. Sure, you can be given a piece of paper which recognises native title, but on the back of it are no powers, no rights, no say. That is what Senator Minchin, through this specious line of argument he put to us tonight, wants to say should be the case. I hope the Senate will not swallow it.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator McKiernan)—The question now is that amendment 46 moved by the government be agreed to.XE4BOLKUSSenator Bolkus—I wonder whether it is best to defer that until we have the opposition amendment moved first. It might be more appropriate.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—I think that would be acceptable to the committee.XE4BOLKUSSenator Bolkus—I will proceed with my amendments, the numbers of which you know.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—The question now is that schedule 1, item 9, sections 43A and 43B, stand as printed.Question resolved in the negative.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Do the Greens and Senator Harradine wish to proceed with their amendment? The answer is no. We proceed to Senator Bolkus and the group of amendments 118, 198, 203 and 355.Amendments (by Senator Bolkus) agreed to:(118) Schedule 1, item 9, page 79 (line 3), omit "sections 43 and 43A", substitute "section 43".(198) Schedule 1, item 34, page 133 (line 10), omit "or 43A(1)(b)".(203) Schedule 1, item 34, page 133 (line 16), omit ", 43(3) or 43A(6)", substitute "or 43(3)".(355) Schedule 5, item 11, page 352 (lines 7 and 8), omit "or 43A(8)". 10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—We go back to government amendment 46 now.Amendment—by leave—withdrawn.23:23:002469Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I move:(R209) Schedule 1, item 42, page 138 (lines 16 to 18), omit the item, substitute:42 Paragraph 237(a) Omit "does not directly interfere with the community life", substitute "does not interfere directly with the actual functioning of the way of life of the community".(210) Schedule 1, items 43 and 44, page 138 (lines 19 to 22), omit the items, substitute:43 At the end of section 237 Add: (2) If the act creates rights in persons other than those who are or may be native title holders in relation to the land or waters concerned, the following must be taken into account: (a) the terms and conditions contained in any relevant grant, licence, permission or authority; (b) the legislation governing their creation; (c) the possible activities that would be authorised by their creation. (3) In deciding whether an act involves a major disturbance as mentioned in paragraph (1)(c), the beliefs and concerns of the native title claim group must be considered.Just very briefly, the government is attempting to limit the application of the right to negotiate by broadening the definition of an act attracting the expedited procedure and, in doing so, not providing for the impact of an act on community life. We think it is important that the impact of an act on the way of life of a community is factored into consideration as to whether an act is an expedited procedure or not. So 209 amends section 237A to restore application of the expedited procedure to the level that was intended in 1993—that is, to consider social and community impact of an act.Opposition amendment 210 is a complementary amendment. It clarifies the matters which should be taken into account when determining whether the expedited procedure applies. Basically, they are part and parcel of the same issue—that is, to ensure that community life is taken into account.23:24:002469Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—The government opposes this amendment. The expedited procedure is rapidly losing any real attraction because of judicial interpretation of it. It is not working in the way intended. Increasingly, there are objections to it, That means, regrettably, that things then have to all end up going through the right to negotiate process. We think our restructuring of the expedited procedure will enable it to work effectively for everybody concerned, without overriding or denying the spiritual importance of land to Aboriginal people, which we acknowledge. It is important that the expedited procedure is able to be put in place without mere assertions about spiritual connection meaning that it can never be used. We oppose the amendment.Agreements agreed to.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator McKiernan)—We now proceed to running sheet No. 19—miscellaneous—which is the sheet headed `Revised 3'.23:25:002469Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I move:(82) Schedule 1, item 10, page 122 (after line 3), insert:and (ba) an activity is done in accordance with the lease, licence, permit or authority and any such conditions;(83) Schedule 1, item 10, page 122 (lines 5 and 6), omit "any activity in giving effect to the requirement or permission", substitute "the activity".(84) Schedule 1, item 10, page 122 (lines 10 and 11), omit "any activity in giving effect to the requirement or permission", substitute "the activity".(85) Schedule 1, item 10, page 122 (lines 13 and 14), omit "any activity in giving effect to the requirement or permission", substitute "the activity".(86) Schedule 1, item 10, page 122 (lines 15 to 17), omit the note to paragraph 44H(e), substitute (aligned with the left margin to the text of section 44H): Note 1: Any compensation to which the native title holders may be entitled under this Act for the grant of the lease, licence, permit or authority may take into account the doing of the activity.Note 2: This section is not intended to imply that the person carrying on the activity is not subject to the laws of a State or Territory.(87) Schedule 1, item 34, page 133 (lines 8 to 10), omit ", subsection 24KA(8), 24MD(7), 24NA(9), 26A(1), 26B(1) or 26C(2), paragraph 43(1)(b) or 43A(1)(b)", substitute "or (7)(a), subsection 24KA(8), 24MD(7), 24NA(9), 26A(1), 26B(1) or 26C(2), paragraph 43(1)(b), subparagraph 43(3)(c)(ii), paragraph 43A(1)(b), subparagraph 43A(6)(c)(ii)".(88) Schedule 1, page 139 (after line 2), after item 45, insert:45A Section 240 (definition of similar compensable interest test )After "past act", insert ", an intermediate period act".(89) Schedule 2, item 36, page 193 (lines 21 to 28), omit the item, substitute:36 At the end of section 139Add:; or (d) if a person has made an application under subsection 24DJ(1) objecting against registration of an indigenous land use agreement and not withdrawn the objection—whether the person satisfies the Tribunal that it would not be fair and reasonable to register the agreement having regard to the matters mentioned in paragraph 24DL(2)(c).(91) Schedule 2, item 40, page 194 (lines 14 and 15), omit the item, substitute:40 Section 148Repeal the section, substitute:148 Power of Tribunal where no jurisdiction, failure to proceed etc.The Tribunal may dismiss an application, at any stage of an inquiry relating to the application, if:(a) the Tribunal is satisfied that it is not entitled to deal with the application; or(b) the applicant fails within a reasonable time to proceed with the application or to comply with a direction by the Tribunal in relation to the application.40A After section 149Insert: 149A Power of Tribunal to reinstate applicationIf it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the application or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.(92) Schedule 2, item 70, page 210 (lines 10 and 11), omit the item, substitute:70 Paragraph 200(1)(a)Omit "arising under Part 2", substitute "for acts affecting native title".(93) Schedule 2, page 210 (before line 11), after item 70, insert:70A Paragraph 200(1)(c)After "State/Territory body", insert ", or equivalent body (within the meaning of subsection 207B(1)),".(94) Schedule 2, item 71, page 211 (after line 25), after paragraph (c), insert:(ca) members of the one or more equivalent bodies will enjoy security of tenure no less favourable than that enjoyed by members of the NNTT or the Native Title Registrar, as the case requires; and(95) Schedule 2, item 71, page 212 (lines 3 to 12), omit paragraph (f), substitute:(f) if any of the functions or powers that will be performed or exercised under the determination are those of the NNTT—the law of the State or Territory will require the member or at least one of the members of the equivalent body to be a member of the NNTT; and(96) Schedule 2, item 71, page 212 (after line 28), at the end of subsection (5), add:Note: The Administrative Decisions (Judicial Review) Act 1977 will apply to decisions that an equivalent body or a State or Territory Minister may, because of this section, make under this Act to the same extent to which it applies to corresponding decisions of the NNTT, the Native Title Registrar or the Commonwealth Minister under this Act.[section 207B]These amendments fall within this block of amendments. These are minor amendments which are technical improvements to the bill in a way that is consistent with government policy. As I understand it, they are generally acceptable, at least to the opposition. I do not think I need to take the time of the chamber to explain them, unless there are any questions about them.23:27:002471Bolkus, Sen NickSenator BOLKUSXE4SAALP00—The opposition supports all of these government amendments.23:27:002471Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I support all of these government amendments.Amendments agreed to.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator McKiernan)—The question is that schedule 2, item 37 stand as printed.Question resolved in the negative.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—The question is that schedule 2, items 72 to 74 stand as printed.Question resolved in the negative.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—The question is that schedule 2, part 3 stand as printed.Question resolved in the negative.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—As Democrat-Greens amendment No. 4A is not being proceeded with, we now proceed to opposition amendment N48.23:29:002471Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I move:(N48) Schedule 1, item 9, page 12 (after line 24), after Division 2A, insert:Division 2AA—Validation of transfers under New South Wales land rights legislation 22I Overview of Division In summary, this Division allows New South Wales to validate certain transfers under the Aboriginal Land Rights Act 1983 of that State.22J Validation of transfers If: (a) future acts consist of the transfer of lands under section 36 of the Aboriginal Land Rights Act 1983 of New South Wales; and (b) the claims for the lands were made before 28 November 1994; and (c) the acts took place before or take place after the commencement of this section; and (d) the acts are not intermediate period acts; and (e) the acts are invalid to any extent because of Division 3 of Part 2 or for any other reason, but would be valid to that extent if native title did not exist in relation to the lands;a law of New South Wales may provide that the acts are valid, and are taken always to have been valid.22K Effect of validation on native title The non-extinguishment principle applies to the acts.22L Entitlement to compensationCompensation where validation (1) If a law of New South Wales validates the acts, the native title holders concerned are entitled to compensation.Recovery of compensation (2) The native title holders may recover the compensation from New South Wales.Compensation to take into account rights etc. conferred by transferee (3) The compensation is to take into account all rights, interests and other benefits conferred, in relation to the lands, on the native title holders by, or by virtue of membership of, the Aboriginal Land Council (within the meaning of the Aboriginal Land Rights Act 1983 of New South Wales) to which the lands are transferred or by which the lands are held.NSW may create compensation entitlement (4) This section does not prevent a law of New South Wales from creating an entitlement to compensation for the acts or for their validation. Note: Paragraph 49(b) deals with the situation where there are multiple rights to compensation under Commonwealth and State legislation.As I understand it, this amendment deals with the validation of transfers under New South Wales land rights legislation. The purpose of this amendment is to address a problem flowing from the failure of the present section 25 of the Native Title Act to mirror sections 228(3) and 228(4). As a consequence of this failure, it is likely that land claims made under the New South Wales Aboriginal Land Rights Act 1983 validly affected native title on the grounds that the legislation and claims made under it constitute special measures for the purposes of section 8 of the Race Discrimination Act.As such, the grants of those claims will be valid but for the enactment of the future act provisions of the Native Title Act 1993. It was not the intention of the parliament in 1993 to disrupt the operation of beneficial state laws in this matter and, to the extent that there is any invalidity, this amendment helps to enable the state to cure it. The reference to 28 November 1994 as the cut-off date for validation is a reference to the date on which the New South Wales native title act of 1994 commenced. Under that legislation, all future land claims under the Aboriginal Land Rights Act 1983 were expressly made subject to any native title existing on the land immediately prior to the claim.This amendment has the support of both the New South Wales government and the New South Wales Aboriginal Land Council, which is the rep body for the whole of New South Wales.Amendment agreed to.23:31:002472Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—Democrat-Greens amendments Nos 80 to 83 were the amendments that we had a division on last night where, as a result of a technical problem relating to the increased number of pairs last night, a vote that should have been negatived was not. It was agreed that the amendments would be recommitted. As I understand it, the opposition indicated that it did not, in fact, support amendments Nos 81, 82 and 83. Senator Bolkus may wish to comment on that.23:32:002472Bolkus, Sen NickSenator BOLKUSXE4SAALP00—As I indicated at some stage in the last 24 hours, the opposition supports Greens-Democrat amendment No. 80 but we are not inclined to support amendments Nos 81, 82 and 83. Our concern with the government's bill is that it seeks to introduce section 241C(d)(ii). It does so in a way that raises some unintended consequences. Greens amendment No. 80 seeks to omit section 241C(d)(ii). This section of the government's bill is somewhat convoluted, but it amounts to this: it allows a non-exclusive pastoral or agricultural lease to be renewed as two or more separate leases and licences.Instead of allowing for a renewal in the same form and manner, it allows for a disaggregation of the lease interest into two or more separate leases and licences. As part of that provision, it allows not only what is now an extremely wide primary production activities test to apply to the renewed leases, but also says in section 241C(d)(ii) that you could allow other activities associated with primary production, provided only that the majority of the area of all the new leases is still for primary purposes.What you are possibly able to do, for instance—and it is not outside the realms of possibility—is, applying the new definition of primary production activities, in being able to renew your lease into two separate leases, licences or whatever, you may be able to start a tractor factory in one small part of the lease. So long as the overall area is still primary production, you can then section off that small area which is used for manufacturing related to primary production and allow for a new generation of industries altogether. I am sure that is an unintended consequence—I hope it is an unintended consequence—but it is a consequence which section 241C(d)(ii) provides for squarely within that provision. It is for that reason that we oppose 241C(d)(ii), and it is for that reason that we support Democrat amendment No. 80.23:34:002472Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I could not have said it better myself, Senator Bolkus. Were you going to ask for leave to split the vote on 80, Mr Temporary Chairman?10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—I was going to ask was leave granted for the re-committal and then I was going to ask would the committee agree to separate the amendments if leave was granted for the first question. Is leave granted for the re-committal?Leave granted.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—In the light of what Senator Bolkus has had to say, is it the wish of the committee to split amendment No. 80 away from amendments Nos. 81, 82 and 83? There being no objection, it is so ordered. Amendment (by Senator Margetts) proposed:(80) Schedule 1, item 9, page 60 (lines 24 to 30), omit subparagraph (ii).10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—The question is that the amendment be agreed to. I think the ayes have it.6H4HARRADINESenator Harradine—Mr Temporary Chairman, I am not sure how you came to that conclusion. I did not open my mouth.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—The reason I came to that conclusion, Senator Harradine, was that I heard more ayes than noes. Perhaps to get clarity in this very late hour of sitting I will put it again. Those in support of Senator Margetts's amendment No. 80 say aye.23:36:002473Harradine, Sen BrianSenator HARRADINE6H4TASIND00—Mr Temporary Chairman, could I just explain the situation. I feel bound in courtesy to the committee to vote the same way that I did last night on this particular matter, despite the fact that there were extenuating circumstances which meant that I had to be out of the chamber for a few brief moments while this matter was being discussed. I feel it would not be proper for me at this stage to do anything else than what I was able to do when I returned to the chamber yesterday evening. Under those circumstances I am not able to vote. Mind you, I think it is probably one of the very few occasions that I have not voted.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Thank you, Senator Harradine, I was not observant of how you voted last night on this particular issue—I was not in the building—so I will try and arrive at a determination by listening to the ayes and the noes again.Amendment not agreed to.Amendments (by Senator Margetts) not agreed to.(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—".23:38:002473Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Amendment 99 deals with limitation on validity and it is in relation to heritage provisions to be considered in future act processes. I move:(99) Schedule 1, item 9, page 76 (after line 30), at the end of Subdivision O, add:24OB Limitation on validity(1) A future act to which Subdivision G, H, I, K or M applies is valid only if: (a) the person, or one of the persons, who will do any thing authorised by the act will have a legal obligation to consult appropriately registered native title bodies corporate, a representative body and registered native title claimants, unless the person or body indicates that the person or body does not wish to be so consulted; or (b) procedures will be in place under which the consultation will be required;for the purpose of minimising the impact of the act on native title rights and interests in relation to land or waters that will be affected by the act, and giving effect to the matters set out in subsection (2).(2) The matters are: (a) the protection of any area and avoidance of any 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: (i) is authorised because of, results from, or otherwise relates to, the doing of the act; and (ii) affects the native title rights and interests; is to be done.Basically it is to provide that heritage provisions should be considered. I commend the amendment to the Senate.23:41:002473Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—We do oppose this amendment. We simply make the point that the operation of the Native Title Act as amended by a bill does not affect the operation of ordinary heritage protection legislation. All the requirements of all the Commonwealth, state and territory heritage protection regimes would continue to apply. To then double that up by putting in a heritage protection scheme into the Native Title Act itself seems to us unwarranted, unreasonable and unnecessary.23:41:002474Bolkus, Sen NickSenator BOLKUSXE4SAALP00—Senator Margetts has actually uncovered one of the evil and wicked sections of this legislation. It is one that really places the barriers to access to rights here in such a high range and makes it so difficult for people to meet the preconditions set by the government. This is an instant death provision. If people fail it they are denied rights. We support Senator Margetts in respect of it.23:42:002474Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I am not quite sure what Senator Bolkus was talking about then. It does not remove anything. It adds to the government's bill a whole new scheme that could have significant impact on lessees in the operation of their primary production businesses by imposing this whole heritage protection regime even though you have normal heritage protection regimes. I really have no idea what Senator Bolkus was talking about.23:42:002474Bolkus, Sen NickSenator BOLKUSXE4SAALP00—The conditions laid down for access to the heritage protection. That is exactly what Senator Margetts was talking about. Our concern is that the processes that have to be followed are enormously difficult and are very strict.23:43:002474Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—We are just asking that all of those future acts that we are talking about do have heritage protection provisions inserted. It is hard to understand why that would be a problem for anybody who has made even basic acceptance of the necessity that all of this process does not harm or is not likely to harm Aboriginal heritage.Amendment not agreed to.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator McKiernan)—We now proceed to amendment No. 152 from the Greens-Democrats.23:44:002474Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—by leave—I indicate that I am not intending to proceed with Greens-Democrats amendment 152.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—We now proceed to opposition amendments N39 and N40.23:44:002474Bolkus, Sen NickSenator BOLKUSXE4SAALP00—We will oppose items 31 to 33 of schedule 1 in the following terms:(N39) Schedule 1, item 31, page 132 (lines 15 to 20), TO BE OPPOSED .(N40) Schedule 1, items 32 and 33, page 132 (lines 24 to 30), TO BE OPPOSED .These two provisions go to the government's proposed section 211(1)(ba). Section 211 of the act provides that where laws of the Commonwealth, states or territories prohibit the doing of an activity without a licence or permit native title holders do not need the licence or permit if they do the activity for cultural purposes pursuant to their title rights. The government now proposes a new exception to section 211 so that native title holders would still need a licence or permit for research, environmental protection, public health and public safety purposes.While the total implications of the government's amendments are not entirely clear, the government's amendments, we believe, cover activities like hunting certain animals or caring for country. As a consequence, we think we should stay with the existing 211.Opposition amendment 40 removes the government's proposed footnote to subsection 211(2). As I said, section 211 is to exempt native title holders from regulations when cultural activities are performed pursuant to native title rights. The footnote is, for us, contrary to the purpose of the section as it states that the native title holders are still subject to laws of general application in carrying out cultural activities.23:45:002475Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—We had a debate about this last time. I really do think there is some misunderstanding about what we are proposing here. We are only saying that a licence would be required by native title holders if licences are needed by all other Australians and where it involves the grander issue of licences for research, environment protection, public health or public safety purposes. We are talking about general licences. We are only talking about in those circumstances where a licence is required to conduct those activities. We are talking about activities in relation to endangered species and things like that.In those circumstances, native title holders should also have obtained a licence if licences are issued for those reasons and not in general terms. Native title holders with native title rights can continue to exercise those rights but where permits are required of other people in those special circumstances it makes sense that native title holders would also be required to have such a licence. We oppose the amendment.23:47:002475Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—These amendments are the same as Democrat-Green amendments 164, 164C and 164D. We call them the platypus amendments for reasons I gave last time which have special significance for former Senator Gareth Evans. I am not going to explain that. Items 31 to 33 are what the Greens (WA) call the platypus amendments. Only certain people who were involved in the debate in 1993 know what this means. Section 211 of the current act provides a guarantee that certain native title rights such as hunting and gathering can continue where the law restricting or prohibiting activity allows that class of activity to be carried out under licence.Item 31 represents a substantial watering down of this guarantee. As long as there is permission to carry out the class of activities to non-Aboriginal people then Aboriginal people should be able to carry out that class of activity. It is not unreasonable that Aboriginal people should be entitled to exercise traditional rights in all the circumstances where there is not complete prohibition on carrying out a traditional activity. If emergency situations were what the government had in mind—for instance, public safety—then the government should say so. A great deal of scientific research is carried out for private commercial purposes. In those circumstances, indigenous people should be entitled to exercise rights which are fundamental to their own existence.Item 32 is a note stating that the exercise of native title rights is subject to laws of general application. This note is unnecessary and has the potential to create confusion as to which laws apply and the extent to which section 211 rights may be exercised or abrogated by state regulations.With regard to item 33, section 212 ensures that any confirmation is not a backdoor way to further impair native title rights. The current act requires that such confirmation does not extinguish or impair any native title rights or interests. This is fundamental protection for the native title rights.The statement on page 322 of the explanatory memorandum explaining this amendment is justified because ownership or exercise may technically impair the enjoyment of native title and in some respects misses the point of the provision and the protection it is supposed to provide. It is not technical. It is a substantive authorisation for the states to impair native title rights without any procedural rights being afforded. It is discriminatory in that no other person's rights are abrogated in this way. I urge the committee to support the removal of items 31, 31A, 32 and 33.23:49:002475Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—We oppose these amendments for the reasons I have identified. It does seem quite extraordinary to oppose a proposition, by way of a note, that native title holders are subject to the laws of general application. One of the fundamental things that would worry Australians is if we have a whole range of rights totally based on race and you allow certain people to do certain things because of their race and not allow others to do them. It becomes very difficult. When we are talking about laws of general application we are talking in general terms about the criminal law and things like that. It goes without saying that laws of general application should apply to all Australians. We want to make that clear and it does seem extraordinary to oppose it.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator McKiernan)—The question is that schedule 1, items 31, 32 and 33 stand as printed.Question resolved in the affirmative.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—We will proceed to the next set of amendments, which is 164B. The question is that the schedule 1, item 31A stand as printed. Senator Margetts, are you proceeding with 164B?DX5MARGETTSSenator Margetts—No. In fact, even though I mentioned it in my speech, I will not be moving it.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—We will proceed to 246 and 207B and 168 and 173.DX5MARGETTSSenator Margetts—I will not be proceeding with moving those.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Do I take it that 246A and 246B are not being proceeded with as well?DX5MARGETTSSenator Margetts—You had not asked me, but I will be proceeding with those.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—In that case, I will give you the call.23:52:002476Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—These amendments relate to state bodies and the ability for a judicial review of activities, or determinations by state bodies. They were in fact accepted last time. I move:(246A) Schedule 2, item 71, page 211 (after line 22), after paragraph (b), insert: (ba) the law of the State or Territory will provide for judicial review of decisions of the one or more equivalent bodies (including the provision of a statement of reasons for the decision and procedures for, and grounds of, review) equivalent to those available under the Administrative Decisions (Judicial Review) Act 1977 ; and(246B) Schedule 2, item 71, page 212 (after line 12), after paragraph (f), insert: (fa) members of the equivalent bodies will only be appointed by the Governor or Administrator, as the case may be, and will enjoy no less security of tenure and independence from government than are provided to members of the NNTT under this Act;The amendments both relate to the workings of state and territory bodies and we do commend them to the Senate.23:54:002476Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I would point out that government amendments 94, 95 and 96, which I think have already been agreed to, cover exactly those subject matters in terms just described by Senator Margetts. It would be unwise to pass similar amendments because we would end up with the problem we had last time. I do not have time to slip back through what 94 to 96 were, but 94 covers security of tenure, 95 was to ensure that at least one of the members of the equivalent body should be a member of the NNTT and 96 covered the AD(JR) issue in the terms just described.23:55:002476Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—It does seem that you are correct and I accede.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Are you seeking leave to withdraw them?DX5Margetts, Sen DeeSenator MARGETTS—I do indeed.Amendments—by leave—withdrawn.23:55:002476Allison, Sen LynSenator ALLISON1M6VICAD00—I move:(1) Schedule 2, page 185 (after line 7), after item 24, insert:24A At the end of section 108Add:Public awareness and education programs(4) The Tribunal has the function of conducting public awareness and education programs in relation to native title and the operation of this Act.This amendment simply adds to the functions of the National Native Title Tribunal the function of conducting public awareness and education programs in relation to native title and the operation of the act. The tribunal's role is currently to facilitate the making of agreements amongst Aboriginal and Torres Strait Islander people, governments, industry and others whose rights and interests may coexist with native title rights and interests.The amendment is put forward because I think there is very little doubt that there are in fact inadequate levels of public awareness about native title. People that I meet who are otherwise well informed and well meaning, and even quite committed to the concept of native title and reconciliation, are often very confused about what native title means, what it does, and what the 10-point plan is all about.For this reason, when the Prime Minister declared that Aborigines had a veto over development of 78 per cent of Australia—although I note that Senator Minchin has varied that figure to 40 per cent tonight—and the Senate declared that our backyards were not safe from native title claims, it was not surprising that many people out there were confused. I think our political leaders have been able to take advantage of ignorance and they have cynically manipulated public opinion and fostered hatred and divisiveness. Education is a very powerful weapon against prejudice and hatred. That is why the Democrats are very happy to move this amendment.With this amendment we would like to give the National Native Title Tribunal the task of educating indigenous and non-indigenous Australians about native title. It is a role that the tribunal already takes on in a very effective way for those who are closely associated with the process. The tribunal has been a very valuable and reliable source of accurate advice to the Australian Local Government Association, and to state and local government organisations, in assisting them to respond to native title and to engage in non-adversarial ways of working through the processes.The tribunal has already published material on native title, a background paper that gives national, state and territory based figures on native title applications. The tribunal is on the Internet with questions and answers, media releases, instructions on how to apply for native title, policies and procedures, time lines, determinations, draft agreements, feedback, search sites and a growing list of publications. The most recent of these is a new book entitled Native Title and the Descent of Rights. Constraints on available funds, however, mean that this publication is not available free of charge but must be purchased.With assistance from ATSIC, the ALGA employed a native title project manager to provide accurate, unbiased information and to conduct seminars around the country for councils with native title representative bodies and state and territory governments. At these seminars it has been very clear that communities were desperately looking for information—dispassionate, accurate information—to assist their understanding of native title, its origins and what it is, what the Native Title Act does and what the range of options are for responding to native title claims.Not all state governments have been eager to take part in this process. The Kennett government in Victoria, until recently, was advising its councils to steer clear of local area agreements. It was discouraging councils from even meeting with claimants. But the work of the ALGA and the Native Title Tribunal has turned that around somewhat with their seminars. The ALGA, with the assistance of the tribunal, have produced booklets entitled, Working with native title and Working out agreements: a practical guide to agreements between local government and indigenous Australians.As I said, the tribunal has remained quite unbiased and apolitical throughout these seminars and in its dealings with councils. It does not discuss the 10-point plan or attempt to make judgments about its implications, so the government need not fear criticism. Local government, having worked closely with the tribunal for some time now and being a quite significant land manager in its own right and therefore a player in the process, is convinced that the tribunal is best placed to conduct a public education campaign. The Native Title National Liaison Committee has already raised the need for public education and unanimously agreed that the tribunal is the most appropriate body to play a lead role in this area.As I have said in this debate before, I consider local government to have provided the sort of leadership that we would like to have seen from the Prime Minister. The national ALGA convention last year made a very solid commitment to reconciliation and to negotiating native title agreements and, as I have said previously, local governments are in an excellent position to bring knowledge, cohesion and understanding into their communities, instead of divisiveness and fear. They are already well placed in their relationship with the Native Title Tribunal to do that.The tribunal does not currently have the resources or the equipment to conduct widespread public education programs, so if the government opts to support this amendment it would, of course, be recognising the tribunal's valuable work so far, but hopefully it would also indicate its willingness to make provision for resources in the next budget for such a measure. I commend this amendment to the Senate.Thursday, 9 April 1998NaN:00:002478Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—At midnight on the fourth day of this debate, I do not think that gratuitously insulting the Prime Minister is the way to encourage us to support this amendment. There is no doubt that there is a very low level of understanding of native title in the community. I think we all can see that, and many of us have spent a lot of time in good faith generously explaining native title to many community groups. I also commend the ALGA on what it has done in seeking to ensure that local communities affected by native title claims do have a greater understanding of what it means so that the fear on both sides can be allayed. I also support what the Native Title Tribunal has been doing, particularly Justice French, who I think does a very good job in going around the country talking about native title in a dispassionate and objective manner.It is a fact that the Native Title Tribunal operates in the way in which the amendment seeks to describe without this amendment. It already includes within its strategic goals that of informing and educating applicants and others about native title concepts, the purposes of mediation and the role and processes of the tribunal itself. It already has a budget of $21½ million per annum to enable it to perform those and other functions.In general terms we obviously support every effort to ensure that the community has as great an understanding of native title as possible, and I know that groups like the ALGA, farmers organisations, the mining industry and Aboriginal groups do a lot of this sort of work as well as, of course, we mere politicians. But I am not in a position to indicate government acceptance of this amendment to give additional statutory functions to this Commonwealth body. It would have budgetary implications. We will obviously be interested in the Senate's view of this and take account of it, but I am not in a position to indicate government acceptance.00:03:002478Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I genuinely have to say that, at the end of this debate, this is also a lineball decision for us. On the one hand I can see that there is a need for someone to be doing this, and I can see that the Native Title Tribunal does it to a certain extent. But my concerns are that, firstly, if we do give this tribunal a legislative responsibility to do it, it would be a responsibility which they possibly will not be able to meet to fulfil our expectations. This is a tribunal that is going to be overladen with work in the forthcoming years, and it will need all the resources and staff it can get to ensure that the system works properly.Secondly, the public education role is one that it can conduct to a certain extent, but the importance about the tribunal so far is that it has tried to build respect through building a profile of independence and not being a lobbyist for the system, and that is probably important as well. On the other hand, I just cannot see this government giving resources anywhere else for this function to be conducted. On balance, I do not know that I would support a legislative responsibility on the tribunal to do this to the extent that their operation and their profile can be enhanced. They do it and they should continue to do it, but I am a bit concerned that we may be voting for this amendment—if we do vote for it—with high expectations that the tribunal cannot fulfil. Probably for that reason, the opposition does not support it.Amendment not agreed to.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Ferguson)—We will move to schedule 2, item 88, which the Greens (WA) have indicated opposition to. The question is that schedule 2, item 88 stand as printed.00:06:002479Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I will not be proceeding to oppose this.00:07:002479Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I move:(N49) Schedule 5, page 357 (after line 9), at the end of Part 5, add:26A Transitional—certain acts are valid(1) If the conditions in this item are satisfied an act will be valid.First condition(2) The first condition is that the act: (a) if done under the old Act would be a permissible future act; and (b) would not have been subject to the requirements of the right to negotiate provisions in the old Act; and (c) is subject to the right to negotiate provisions in this Act.Second condition(3) The second condition is that after 1 July 1996 and before the commencement of this Act: (a) negotiations in good faith with native title parties have been entered into by the person requesting that the act be done; and (b) an agreement about the doing of the act is reached between: (i) the person requesting that the act be done; and (ii) one or more of the native title parties; andand at least one Aboriginal/Torress Strait Islander body for the area endorses that it is satisfied that negotiations have occurred in accordance with paragraph (3) (a); and (c) the act is done either by the person requesting to do the act or by a State or Territory government, consistent with the terms of the agreement.Act may be done without agreement(4) If agreement is not reached in accordance with paragraph (3)(a) and (b) and the Aboriginal/Torres Strait Islander body for the area endorses that it is satisfied that negotiations have occurred in accordance with paragraph (3) (a) for a reasonable period: (a) the act may be done; and (b) the native title parties have the same procedural rights in relation to the doing of the act as if the old Act was still in force.This is an amendment which is, in many true respects, a transitional amendment. The aim of this amendment is to allow the existing law in the old Native Title Act to apply to the PNG-Queensland gas project and any other project in an identical position. In respect of the PNG-Queensland gas project, we have been requested to move this amendment by, amongst others, both Frankie Deemal of the Cape York Land Council and Norman Johnson of the Birri Gubba Land Council, and I will either table or incorporate their letter at a later stage.We have a situation here where the PNG-Queensland gas project involves the piping of natural gas from Kautubu in the highlands of Papua New Guinea through the Torres Strait and mainland Queensland to Gladstone. It is a massive project involving some $6 billion in construction costs and there are some 16 traditional owner groups involved. It has been a project that has been characterised so far by a strong working partnership between the Aboriginal peoples and the lead joint venture partner, Chevron. I am informed that it is a good example of how the existing Native Title Act has not stopped economic development but has ensured such development does occur with consultation, negotiation and agreement.The problem with this particular proposal is that, under Queensland law, a proponent of a gas pipeline is required to comply with the provisions of the Queensland Petroleum Act. This act provides for the grant of a pipeline licence a legal regime for the securing of easements over pipeline corridor lands and compulsory acquisition of interests in land for a pipeline easement. Acts taken under the Petroleum Act are permissible future acts as they can be done over freehold land. Whilst the Petroleum Act provides for the compulsory acquisition of native title interests, it is not a compulsory acquisition act within the meaning of section 26 of the existing Native Title Act. This means that the right to negotiate is not triggered by the Queensland Petroleum Act.The legal effect then of the Petroleum Act in its relationship with the Native Title Act was the subject of a decision by Justice Drummond in the Tenneco case. This decision confirmed that the Petroleum Act did not trigger the right to negotiate. This has led to an inability by the company to seek the triggering of the right to negotiate. In the absence of that, parties have proceeded to a project heads of agreement to develop an innovative way to progress the project. The approach adopted has featured extensive discussions with Aboriginal rep bodies, traditional owners and leaders as to an appropriate method of consultation and negotiation.Following these discussions, there was adoption of a detailed process of consultation and negotiation which built upon and endorsed Aboriginal decision making processes. These processes commenced in February 1997 and have continued since. In November 1997, the heads of agreement was signed. There is an implementation group consisting of reps of the Aboriginal people of each of the regions which the pipeline traverses. That group is working with a company to convert the heads of agreement into specific agreements with each of the traditional owner groups.We are informed that the amendment is needed because the timing of the changes introduced by this bill would disrupt and frustrate the agreement process which is already under way. If the government holds off this bill and puts it to a double dissolution, then there will be no prospect of this bill having effect until next year—a good 10 months down the track. Under those circumstances, the process continuing with the land councils and the Chevron project will come to conclusion and agreement. But if this legislation does apply with respect to this, then we start a new right to negotiate process. That is why the people I mentioned earlier wrote to us. I will read out the last two paragraphs of their correspondence:We are concerned that a consequence of the Native Title Amendment Bill may be to change the legal regime against which our agreement has been reached and our implementation process adopted. Such a change may well have the affect of frustrating our processes even though the intention might be to enhance the position of Native Title holders.Accordingly, we ask that we be able to complete the processes we have started and implement the agreement we have reached against the background of the existing law. We understand this may involve an amendment to the Bill to ensure this is the outcome. In particular we believe that it would be detrimental to now apply the formal "right to negotiate" to the project when a process equivalent to that right has already been adopted by the Aboriginal Peoples and the Company.Basically, they are asking for the existing Native Title Act and state legislative regime to apply. Amendment N49 does precisely that. It provides that this provision apply only to the specific circumstances where an act is a perversible future act under the current Native Title Act and currently does not trigger the right to negotiate, but because of the amendments to the act the right to negotiate will now be triggered; secondly, it can only be accessed if a process of negotiation has taken place and agreement has been reached; or, if there is no agreement, then the full rights provided under the existing Native Title Act—that is, the freehold test—apply to the act.That, I am sad to say, is a longer exposition than I would have liked to have given. I now seek leave to incorporate in Hansard the correspondence from Norman Johnston of the Birri Gubba Council and Frankie Deemal of the Cape York Land Council.Leave granted.The document read as follows—Norman Johnson152 Broad StreetSARINA QLD 4737Frankie DeemalPO Box 2496CAIRNS QLD 4870The Hon. Gareth Evans MPDeputy Leader of the OppositionConvenor of the ALP Wik Task ForceParliament HouseCANBERRA Dear Mr EvansPNG-QLD GAS PROJECTWe write as Facilitators of the Agreement Implementation Committee established by the Aboriginal peoples affected by the proposed PNG-Qld Gas Project. The purpose of this letter is to explain to you the processes which the Aboriginal Peoples have collectively decided to adopt in relation to the project and request that any proposed amendments to the Native Title Act do not frustrate this process and the agreement framework that has been reached.BackgroundOver the last 12 months the traditional owners have been progressively consulted by Chevron, the proponent of the project. The Aboriginal peoples have in response to the proposal established processes to consider the proposal and negotiate with Chevron. These processes have involved the creation of regional steering committees several pan-pipeline meetings of representatives of all the peoples affected by the project. From this group a negotiating team was appointed to negotiate a framework agreement with Chevron extensive and detailed negotiations between the negotiating team and the Company the settling of a Heads of Agreement between Chevron and traditional owners which was debated and endorsed by the Pan-Pipeline Aboriginal Meeting in November 1997.Most recently, the Pan-Pipeline Group established two committees to undertake further detailed work with Chevron to put into operation the Heads of Agreement. The Agreement Implementation Committee is representative of the traditional owners of each of the regions which the pipeline will traverse in Queensland.The implementation Committee and its sister committee on Economic issues have programmed a detailed series of meetings for the coming months which will see specific agreements reached with Chevron over particular regions which the pipeline traverses. These agreements will put into place the extensive benefit and recognition package agreed in the Heads of Agreement.Native Title Amendment BillWe are concerned that a consequence of the Native Title Amendment Bill may be to change the legal regime against which our agreement has been reached and our implementation process adopted. Such a change may well have the affect of frustrating our processes even though the intention might be to enhance the position of Native Title holders.Accordingly, we ask that we be able to complete the processes we have started and implement the agreement we have reached against the background of the existing law. We understand this may involve an amendment to the Bill to ensure this is the outcome. In particular we believe that it would be detrimental to now apply the formal "right to negotiate" to the project when a process equivalent to that right has already been adopted by the Aboriginal Peoples and the Company.Yours faithfully(Signed) Norman JohnsonBirri Gubba(Signed) Frankie DeemalCape York Land Council00:14:002481Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—This eleventh hour—or ten past midnight—amendment by the ALP frankly is nothing more than an admission by the ALP that the right to negotiate process is completely inappropriate for private infrastructure projects like the Chevron pipeline. We want to see that go ahead and we understand the enormous problems that the right to negotiate would present for completing a project of that kind. This simply demonstrates exactly what we have been saying all along—that these sorts of projects will be bogged down for years if they have to go through the full-blown right to negotiate process. This amendment would be completely unnecessary if the ALP had supported us in ensuring that ordinary procedural rights applied with respect to native title holders and private infrastructure projects.So we regard this as quite a remarkable proposition. These sorts of project specific amendments are never all that attractive. We want that project to proceed. We believe that our amendments would have facilitated that, as it would with many other private infrastructure projects all over Australia. Are you saying that we should go along just having these sorts of exemptions from the right to negotiate process from every major private infrastructure project that you can think of or that you get correspondence about? In that case, you should have supported our amendments in the first place.Amendment agreed to.00:16:002481Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I move:(334) Page 364 (after line 10), at the end of the bill, add:Schedule 6—Fast track determinations 1 At the end of subsection 13(3) Add: ; (c) an entry made in the National Native Title Register following a submission to the Registrar by a representative body in accordance with its fast tracking functions (see section 203BHA). 2 After subsection 47(1) Insert: (1A) This section also applies in relation to land or waters the subject of findings given by a representative body under subsection 191A(1). 3 After section 191 Insert:191A Fast tracking determinations (1) If a representative body has fulfilled its fast tracking functions (see section 203BHA) in relation to an area of land or waters, it must give details of its findings to the Registrar. (2) The Registrar must notify the public in the determined way of the findings, and stating that the persons referred to in subsection (4) in relation to the area may appeal against the findings within 3 months after the notification. (3) If there is no appeal within the 3 months, the Registrar must: (a) enter the findings on the National Native Title Register as an approved determination of native title stating that, subject to any notification under paragraph (b), the native title rights and interests confer possession, occupation, use and enjoyment of the area concerned on the relevant people to the exclusion of all others; and (b) include a notification in the determination identifying any indigenous people found to have a regular physical connection with the land or waters and their recognised rights. (4) These people have standing to appeal against the findings: (a) indigenous people who claim that they are the native title holders and that the group identified in the findings is not; (b) indigenous people who claim that they should be included in the native title group identified in the findings; (c) indigenous people who claim to have a regular physical connection with the land or waters and who seek to have their recognised rights noted in the determination. (5) An application may be made to the Federal Court for: (a) an order that the person or persons be included in the native title group; or (b) a declaration that the person or persons has a regular physical connection with the land or waters and is entitled to continue to exercise recognised rights. 4 Paragraph 193(1)(a) After "High Court", insert ", or determinations made following the performance by a representative body of its fast tracking functions (see section 203BHA)". 5 After paragraph 203B(1)(e) Insert: (ea) the fast tracking functions referred to in section 203BHA; 6 After section 203BH Insert:203BHA Fast tracking functions (1) The fast tracking functions of a representative body are to be performed in relation to areas of land or waters of a kind referred to in subsection (4). (2) The fast tracking functions of a representative body are, for such an area: (a) to take all reasonable steps to identify as the native title holders of the area the group of people who, by acknowledgment of traditional law and custom, have a traditional connection with the area; and (b) to ascertain whether the native title holders wish to have their connection recognised by an approved determination of native title; and (c) if they do, to ascertain whether the native title holders wish: (i) that the native title be held on trust by a prescribed body corporate; or (ii) to hold the native title themselves; and (d) to consult other indigenous people particularly concerned with the area; and (e) to identify any such indigenous people who have a regular physical connection with the area and identify the rights or interests (the recognised rights ) they enjoy (such as occupation, access, fishing, hunting or gathering); and (f) to facilitate the mediation and negotiation of issues relating to the fast track recognition of native title for the area between the native title holders and other indigenous people particularly concerned with the area; and (g) to satisfy itself that appropriate arrangements have been made to protect the interests of those other people. (3) If such a representative body is satisfied that the native title holders wish to have a determination of native title in relation to such an area, it must: (a) make a finding to that effect; and (b) make a finding as to the identity of the people (if any) who are not native title holders for the area but who have a regular physical connection with the area and as to their recognised rights. (4) The areas of land or waters to which the fast tracking functions of a representative body apply are: (a) Aboriginal/Torres Strait Islander land or waters; and (b) areas referred to in paragraph 47(1)(b); and (c) areas that are subject to a trust or reserve in favour of, or a lease for the benefit of, Aboriginal peoples or Torres Strait Islanders; and (d) areas which constitute a national park or reserve for conservation purposes; and (e) vacant Crown land.This amendment relates to fast-track provisions for native title claims on Aboriginal land. Senator Bolkus for the ALP moved similar provisions last time. We obviously think they are commonsense, and I am sure Senator Bolkus will, hopefully, be happy to elaborate.00:17:002483Bolkus, Sen NickSenator BOLKUSXE4SAALP00—Oh, thanks very much. That is what you call passing the buck. These provisions need to be supported for two reasons, not just for fairness. In many circumstances in the government's legislation, people will have had their property rights impaired or taken away without notice of fair process. In some circumstances, what these provisions do is provide for fast-track compensation. So not only are they there for fairness, but a bill which has fast-track compensation and circumstances where rights are either retrospectively taken away or taken away without due process has a greater chance of meeting the just terms provisions of the constitution. It is for that reason we moved them last time, and I thank Senator Margetts for moving them tonight. I support them by the way.00:18:002483Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—We oppose this amendment. I am absolutely amazed that, given what the Greens have been saying about our position on the right to negotiate throughout this debate, they could support that last amendment, which specifically provides that a major private infrastructure project shall not have the right to negotiate apply to it. I will not say what I think of that.We do have sympathy with the objective of this amendment but not with the mechanism for giving effect to it. We do think there are legal obstacles to the proposal stemming from the consequences of the Brandy decision. The advice to the government is that the validity of the existing process which allows for native title determinations by the NNTT is doubtful in the light of Brandy. So the essence of this proposal is a finding by representative bodies, which are obviously not judicial bodies, of who holds native title in particular areas. That has all the problems that we have all agreed there now are with the Native Title Tribunal acting in any judicial capacity and it is why the whole process must be dealt with in the Federal Court and not the tribunal. The tribunal's function is mediation and arbitration on the RTN. So we think there are real legal problems with this and we cannot support it.Amendment not agreed to.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—We now move to replacement amendment RN4, which has been reintroduced by Senator Harradine.00:20:002483Bolkus, Sen NickSenator BOLKUSXE4SAALP00—Before we do that, I have a minor consequential one which I do not think has been circulated but, if I can explain it, it may be something that we can agree to quickly. Maybe I should give notice of it now to give people a chance to look at it while we are debating Senator Harradine's amendment. When we discuss renewals and the right to negotiate, under amendment RN27 1(b) provides for earlier rights which were created on or before 23 December 1996 by an act that is valid, including because of division 2 of the Native Title Act. The clause was actually drafted at a time when the opposition was pursuing an earlier cut-off date of 1994: as a consequence, the date would have been 1994 and we referred only to division 2. As the amendment went through the Senate we also picked up, not just past acts, but intermediate period acts. So the date then went from 1994 to 23 December 1996. The reference to division 2 only refers, of course, to past acts. Division 2A refers to intermediate period acts. In order to obtain consistency and pick up the fact that we have agreed to extend the renewal capacity to cover both past and intermediate period acts, I suggest that the words `or 2A' be added after the words `Division 2'. So I will put that on notice at this stage. I do not think the government would have a problem with it because of its consistency.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—We will need it in writing because the clerks are having trouble finding out exactly where it needs to be.XE4Bolkus, Sen NickSenator BOLKUS—I will get someone to write it down, but people are on notice so we can come back to it straight after Senator Harradine.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Senator Harradine, do you want to move your replacement amendment RN4 now? Senator Bolkus was just giving notice of his amendment.00:22:002484Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I seek your guidance, Mr Temporary Chairman. This is, in effect, a recommittal.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—My advice is that your amendment was negatived, Senator Harradine, so you are quite entitled to introduce it as a replacement amendment.6H4Harradine, Sen BrianSenator HARRADINE—Thank you. Honourable senators will recall the debate that took place on the registration test and my attempt to have the registration test expanded so that those persons who would not qualify under the guidelines established by the government in its amendment to the legislation would be eligible to obtain registration. I will read to the committee this amendment which is to add to the registration test provisions paragraph 11. I move:(RN4) Schedule 2, item 63, page 206 (after line 28), at the end of section l90B, add: (11) For the purposes of the operation of paragraph (7)(b), a reference to a member of the native title claim group will be taken to include a reference to a parent of a member of the native title claim group who previously had, and would reasonably have been expected during his or her life to have continued to have, a traditional physical connection with any part of the land or waters but for things done (other than the creation of an interest in relation to land or waters) by: (a) the Crown in any capacity; or (b) a statutory authority of the Crown in any capacity; or (c) any other person.This was specifically designed to cover the `stolen generation' and to cover those indigenous persons and groups who were locked out by pastoralists or by any other means; in other words, it is the locked gate and stolen generation amendment. I will not go over the arguments that I advanced on the last occasion in support of this amendment. I am grateful for the support of the opposition at that time. The amendment was, however, lost, and I put it to the committee again in the hope that the committee might see its way clear on this occasion, at this late stage, to support the amendment.00:25:002484Bolkus, Sen NickSenator BOLKUSXE4SAALP00—The opposition does support this amendment. I think most of us have actually been haunted by the injustice that has flowed from the first time we debated and decided on the registration test. I, for one, have been trying to grapple, in the last 48 hours or so, with how in fact do we try to overcome the fact that, in doing what we did a couple of days ago, we have actually done a huge injustice to at least one generation of Aboriginal people. The law, as it would now operate if this bill was proclaimed, would provide for a registration test that would involve a registrar being satisfied that the factual basis on which it was asserted that the native title rights and interests claim is sufficient to support—and I stress those words `sufficient to support', as opposed to prima facie—a contention that at least one member of the claimant group currently had, or previously had, a traditional physical connection with the land or previously had, and would reasonably be expected currently to have, a traditional physical connection with the land but for the actions of the Crown, statutory authority or another person.This new alternative is the one we need to focus on because it is not a stolen generation clause, because it requires that persons must have previously have had a traditional physical connection with the land before they can pursue their interests now. It is a contemporary locked gates clause in that it only applies to people who are currently locked out but who also previously had a physical connection to the land. That is not the registration test that this Senate agreed to in December 1997. We do not have to revisit the whole heated debate that we had the other day, but let us remember that this is not the test that we agreed to in 1997 nor of course is Senator Harradine's amendment. But what Senator Harradine does do in his amendment is ensure that the stolen generations can return to the land and have some rights under the Native Title Act.As I said yesterday, without going through the whole debate again, in practical terms, this provision would ensure that most of those, if not all, who would qualify under Justice Brennan's test in Mabo would be able to get in through this particular provision. I said yesterday that it is not our preferred one, but it goes a long way to meeting our preferred one. But let us remember that without it we will leave this debate denying particularly the stolen generation's justice.00:29:002485Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I want to ask a question of Senator Harradine in relation to this amendment. Its wording is quite different from the amendment moved the first time. Can Senator Harradine explain what the difference is and why there is a difference in the wording?00:29:002485Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I do not have the previous amendment in front of me, but I am advised that the changes in the wording were of a technical nature and do not alter the purpose of the previous amendment.00:30:002485Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—Before lunch today the government had received Senate support for its position on two of the four critical areas that we had identified as fundamental to the government's bill. After lunch we lost one of them when the sunset clause was recommitted and thrown out. If the Greens support this proposition, then it looks like after dinner we will lose the only remaining one of the four on which the Senate had supported the government's position. So the bill would therefore come out of the Senate without the government having received support on any of the four really critical areas for us.I can only restate what I said before on the question of the registration test. We think that for the registration test to operate effectively—particularly if in the case of the opposition parties' premise the right to negotiate is going to apply across 79 per cent of Australia—it has to be a good test. This amendment takes you back to a situation where, even though not one member of the claim group has ever had any connection to the land claimed, the claim can still be registered and give the claimants access to the statutory right to negotiate. That is one reason for our opposition to this. There is also the fact that we do not think a proposition like this can be made workable. I do not know how registrars would be meant to satisfy themselves on this. Parents who may well not be alive being taken account of in determining the question of physical connection seems to us impractical as well as so watering down the registration test as to reduce its effectiveness quite seriously and considerably.00:32:002485Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—The reason I asked the question of Senator Harradine earlier on in relation to the wording is that, as Senator Harradine is aware, the amendment did not actually work last time. Senator Harradine has just told me that the amendment does basically the same as it did last time. If that is case, my advice was that there were problems within the actual bill that made this very difficult to amend in this way. Can you explain that it does not do the same thing that it did last time in some other complex way?00:33:002486Harradine, Sen BrianSenator HARRADINE6H4TASIND00—Could I just explain that the previous draft required the parent to `currently' have the connection. In the case of a deceased parent that could not be possible. This amendment caters for that situation.00:33:002486Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—Clearly, we are all very tired, but what we are doing, despite what Senator Bolkus said, is reopening the whole debate that we had—I cannot remember when—some time ago. I am sorry, but that is what we are doing. And there is no way that, unless we have that debate, the Democrats could ever accept this.Senator Minchin has been very honest, and I am glad about that. I do not know whether `honest' is the right word but he has certainly been very frank, and he always is—I think I could add `honest', because I can be generous at this time of night. And he has said that the government will not accept this amendment either. So what are we doing? The bill is going to be laid aside by the House of Representatives in a few hours time, so what is this achieving? We did not reopen the debate—let me point that out—but we certainly are going to have it, because we are not going to be forced again to simply vote on an amendment which is very much not a second or third best. Actually, it is about a fourth best if you add up the number of amendments which are possible in this debate.I am listening to Senator Harradine; I am listening to the government; I am listening to Senator Bolkus. But I have to say to you that we are not convinced at this stage that we should vote for this particular amendment. Even though I think it explains far better what Senator Harradine was attempting to do, it does not change the principle. The principle that we have objected to all along and which we debated at great length not only two nights ago but before Christmas is that a simple physical connection test, whether you take it back one generation or not, is totally inadequate.What would have been more helpful is for Senator Harradine to bring back either the Indigenous Working Group amendment or the Labor amendment, both of which we supported, because that would have given us some real options. It would have enabled us to really make some progress. But why would we reopen a bill that the government is going to reject—Senator Harradine's amendment is going to be rejected by the government—for hardly any gain but for a lot more pain again, I can tell you? This is the problem. Senator Margetts may like to add to my remarks.00:37:002486Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Honourable senators may have noticed that sheet 957 has been circulated, and I will be asking for recommittal in relation to the registration test. In a very short time you will see another sheet as well. Sheet 957 is basically re-putting the Greens (WA)-Democrats amendments of last time, with some slight variation.What you will see very soon is an amendment, in the name of the Greens and the Democrats, that last time was moved by the ALP. As Senator Woodley suggests, it was not us who reopened this debate. If we are going to open it, we should in fairness provide the option of choices again. Senator Bolkus has indicated that he has had some time to repent, so perhaps the repentance might go so far as to relook at his own amendment. I also would suggest that other senators in the place might consider it. I am sure Senator Bolkus will be prepared to support what is, in fact, his own amendment, but, of course, we need more than Senator Bolkus.Given that the government is clearly indicating that it is not going to move any further with the bill in the form that the Senate has carefully dealt with it, I think it would be a positive, very conciliatory and very important note on which to conclude the debate to heed the concerns of the National Indigenous Working Group, which made some strong statements today in the media and in public, and to look very carefully at rejecting the concept that a physical connection test is necessary for registration. So we will have two choices very soon. By the time we have voted on Senator Harradine's amendment, which I have to say I am still unable to support, we will have the new amendment 1 on sheet 969 that we hope the Senate will permit us to deal with again.00:40:002487Brown, Sen BobSenator BROWNQD4TASAG00—At the instigation of Senator Harradine, we are faced with a recommittal of all three options and a vote on those. So we do get an opportunity to get back to where we were in December last year—no halfway house, no little bit for one generation and, as Senator Bolkus described Senator Harradine's option, no second preference. This is not the preferred one, but let us get back to where we were in December last year so that we give an opportunity to all those people who have a real spiritual and cultural connection with their land to be able to approach the registrar.I want to say a word of commendation for the people who are working hard in our offices. They have been so swift in this situation where the plan was to bring in the Harradine option and leave us to vote on that—take it or leave it—but they have given us back the strong options as well in a matter of minutes. The test here, of course, will come on to Senator Harradine in a little while to see if, with the Labor Party, the Greens and the Democrats, he stands strong on the position that we had in December last year. I am not going to call this an ambush move at the end of the committee, but I am going to say that it was a very fast response from the offices of the Greens and Democrats. It gives us the proper opportunity that we should have to vote on the three amendments.Like Senator Woodley and Senator Margetts, I will not be supporting the weak, in the middle option that will be voted on first. We will be standing for the strong options, including the ALP's own option that was adopted by the Senate last year. I do not know why this has come right at the end. Maybe Senator Bolkus gave the hint when he said they have been haunted by the failure to stand on the ground where they stood in December last year. For one thing, I will thank Senator Harradine for giving the opposition and himself the opportunity to be rid of the ghost, to go back to where they were in December last year, to hold their ground and to make sure that the strong amendment here is the one that we adopt.00:43:002487Harradine, Sen BrianSenator HARRADINE6H4TASIND00—We have to face the facts here. The position is this: at the time the registration test was being put to the chamber, there was a likelihood—I will put it at that level—that there would be an outcome which would be reasonable, fair, just and honourable. That being so, it was incumbent upon the chamber, I believe, at that stage to look carefully at what the government was proposing in respect of a threshold test which would enable only genuine native title claimants to get registered. It has to be clearly borne in mind that this deals with only one of the tracks that is available in the legislation for the consideration of native title claims. There have been a number of comments made subsequently about that, and I will deal with those in a moment.Having regard to that, it was, I believe, incumbent on the chamber to examine as it did what was being said in the debate at that time by the government in respect of its own registration test. I am not going to canvass all of those arguments that took place on the last occasion. I do not think that would be proper at this time of the night. The reasons that were advanced by Senator Minchin on behalf of the government and the calls that have been made on a number of us to have a threshold test which would enable the registrar to revisit a number of the claims is believed by every stakeholder, including the indigenous people and the indigenous leadership, to be bogus and almost fraudulent.That is what we were faced with, and what we are still faced with. If we are fair dinkum about this situation, that is what we are faced with even now. I have heard what the government has said. It may well be that the Senate on this occasion may adopt an attitude which was different to the last occasion.The position was that the government's test was then supported. In my view, it was most inadequate in that it did not cover the stolen generation and those who suffered as a result of the locked gates policy of certain pastoral leaseholders.That view was also taken by the opposition, and the opposition supported the amendment that I put forward. It was at that stage that negotiations were taking place, which unfortunately are no longer taking place. That is a most unfortunate situation. But the Greens and the Democrats voted against my amendment—in other words, they voted against the locked gates and stolen generation persons.I suppose one can say that they were not to know what stage the discussions had reached. They were not to know that it was possible to get something out of the situation with which we were faced. But I had to deal with this matter at a level of responsibility knowing what I did at that particular stage. I do not intend to deal with it in any other way—whether I knew or whether I did not know. But that was the situation.I moved this amendment so as to cater for those two groups of people and did not agree with the test which the Greens and Democrats were talking about which would not really deal with the problem that was identified by certain of the leaders of the indigenous people as well as by all of the other stakeholders, et cetera. But, even with the support of the opposition, that amendment of mine was defeated and we were left with the threshold test of the government. I appeal to the committee to support this amendment.00:50:002488Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I thank Senator Harradine for his contribution. I, too, would like a fair, just and honourable outcome from this debate. I would suggest to the Senate that a fair, just and honourable outcome for indigenous people would be to support the position that they themselves have put. Fortunately, because Senator Harradine has recommitted this, we have the opportunity to do that. I am sure that, if Senator Harradine's amendment is not successful, the Labor Party and Senator Harradine will have the opportunity to vote for either—we do not mind which—the Indigenous Working Group's amendment, which we will put, or the Labor Party's amendment. The Labor Party's amendment is not as good as the Indigenous Working Group amendment, but we believe that both of those are a great distance away from either the government's position or Senator Harradine's amendment.So there will be an opportunity for a fair, just and honourable outcome from this because it has been recommitted and we now have the choice of doing this in the order that it should have been done in fact last time we voted. We will have the opportunity now of voting either for the ALP's amendment or for the indigenous working group amendment if Senator Harradine's amendment is defeated. If the Senate votes for either of those, that certainly will be a fair, just and honourable outcome.00:52:002488Bolkus, Sen NickSenator BOLKUSXE4SAALP00—As I said earlier, this has been a debate which has rolled from one side to another. We have always come to this debate knowing that we had only 28 votes to protect and defend native title interests and to get a balanced outcome and to get certainty. We always had to build on those 28 votes to get to 38. Of course, part of that process has been to try to work out positions that could get support in this place.As I and Senator Harradine said earlier, there has been an enormous pressure on people in this chamber to try to overcome the prospect of a double dissolution based on race. We do have a responsibility as parliamentarians to ensure that the society that we live in is harmonious in its coexistence with each other. I for one have been able to feel the pressure, indirectly I must say, through a whole host of people who have been to see Senator Harradine. I have been able to feel that pressure reverberating into their offices, their aspirations, and into our offices as well. I have to say that no-one should consistently be subjected to that sort of pressure, as Senator Harradine has.In terms of time, this debate gives a new definition to the word `marathon'. When we combine this process this time with the previous debate, we find the parliament has spent some 87 hours and 42 minutes on this native title bill. The committee stage has been some almost 70 hours of that. That is an enormous continuation of pressure. For those who are on the parliamentary committees concerned—two Senate legal and constitutional committees and the Joint Committee on Native Title—it has been the best part of our lives. For Senator Harradine I think it has been as well.But, no matter how much people tried to compromise, they were met with a brick wall from the government. Eighty per cent, 85 per cent, 90 per cent of the 10-point plan through this parliament but the Prime Minister (Mr Howard), still barricaded in his bunker, still digs in and says, `I want all. To the rest of you'—stakeholders, indigenous Australians, taxpayers and those who will become the victims of a race debate—`I really don't care because I want my 10-point plan.' How childish. How obdurate.At the end of this debate what I think the Senate has to contend with is whether, now that all prospects of compromise are over, it is opportune for us to actually go back and say, `We tried in respect of the registration test—an important sticking point. We tried. But what this Senate has come up with is just not good enough.' You cannot leave this debate with the injustice of the stolen generations being deprived of access to their lands. You cannot leave this debate with people who have been locked out over the decades not having access. It is a sad reflection on this government that no-one expects the government to move in the interest of justice. No-one expects justice from the government; so it is up to us.I will seek leave of the Senate to recommit my amendment N36, which was the amendment that was passed by the Senate last year and which provides for the three tests of access in the alternative and provides explicitly for the words of Justice Brennan as one of the three legs. I will seek leave to recommit that particular amendment. Now that all prospects of a compromise with the Prime Minister are out the window, I hope the Senate at least will give a commitment to justice for those who would be unfairly deprived. I hope that, in those circumstances, not only will the Greens and the Democrats support it but also Senator Harradine will find it attractive now. We have tried to compromise. It takes two to tango, and the government has not been with us. In those circumstances, let us not deny access to those who should have a just access to the land.00:57:002489Brown, Sen BobSenator BROWNQD4TASAG00—We have heard two things in the last half hour or so. The first is that the series of amendments which came in which gave ground from last December were in fact motivated by communications with the government at the highest level—I would write the words `Prime Minister' in there. The incentive was given to come further and further. But, even at the end of the day, that was not far enough. That is what we suspected all along. We were not told it. Because we were not told it and could not understand why these middle grounds kept being put forward by Senator Harradine or the ALP, we stood our ground—and it has been the right thing to do.Tonight, when Senator Harradine came back with his amendment, the only thing for us to do was to bring back the strong amendments. I am pleased to see that, because of the Democrat and Greens' holding of the ground, the ALP is now saying, `We will take from the Greens, who have brought this amendment back, our amendment and put it forward ourselves.' That is something they will find we will be supporting. It is where we should have been last Monday night and it is certainly where we should end up tonight.Amendment not agreed to.00:59:002489Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I seek leave to recommit opposition amendment N36.Leave granted.XE4Bolkus, Sen NickSenator BOLKUS—I have spoken to it. I move:(N36) Schedule 2, item 63, page 205 (line 22) to page 206 (line 28), omit subsections (5) to (10), substitute:Registrar's satisfaction about the basis of the Application (5) The Registrar must be satisfied that: (a) the factual basis on which it is asserted that the native title rights and interests claimed exist is sufficient to support the assertion and that it supports the following assertions: (i) that the native title claim group have, and the predecessors of those persons had, an association with the area; (ii) that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests; (iii) that the native title claim group has continued to hold the native title in accordance with those traditional law and customs; or (b) at least one member of the native title claim group: (i) currently has or previously had a traditional physical connection with any part of the land or waters covered by the application; or (ii) would reasonably have been expected currently to have a traditional physical connection with any part of the land or waters but for things done (other than the creation of an interest in relation to land or waters) by the Crown in any capacity, a statutory authority of the Crown in any capacity or any other person.Prima facie case (6) The Registrar must consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established. Note: If the claim is accepted for registration, the Registrar must, under paragraph 186(1)(g), enter on the Register of Native Title Claims details of only those claimed native title rights and interests that can, prima facie, be established. Only those rights and interests are taken into account for the purposes of subsection 31(2) (which deals with negotiation in good faith in a "right to negotiate" process) and subjection 39(1) (which deals with criteria for making arbitral body determinations in a "right to negotiate" process).No failure to comply with section 61A (7) The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that, because of section 61A (which forbids the making of applications where there have been previous native title determinations or exclusive or non-exclusive possession acts) the application should not have been made. (8) If the Registrar is considering placing reliance on material which is adverse to the interests of the claimant, or inconsistent with material supplied by the claimant, the claimant must be shown the material and given a reasonable opportunity to respond or supply further material.No extinguishment of native title to minerals etc. (9) The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that to the extent that the native title rights and interests claimed consist of or include ownership of minerals, petroleum or gas—the Crown in right of the Commonwealth, a State or a Territory wholly owns the minerals, petroleum or gas.Amendment agreed to.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Murphy)—We need to recommit government amendment No. 73 so that Senator Bolkus can move his amendment N37.01:00:002490Bolkus, Sen NickSenator BOLKUSXE4SAALP00—There may not be an objection, but I think both Senator Minchin and I are a little confused as to what you are doing.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—We are dealing with running sheet No. 17 revised 2 registration test. Senator Bolkus, we might seek your guidance. It is just a matter of whether or not you want to proceed with N37.XE4Bolkus, Sen NickSenator BOLKUS—I seek leave to recommit amendment N37.Leave granted.XE4Bolkus, Sen NickSenator BOLKUS—I move:(N37) Schedule 2, item 63, subsection 190B(6), omit "some", substitute "one".This is an associated amendment with the vote that we have just taken. It is an amendment to government amendment 73 and it amends 190B(6) such that native title claimants must only establish prima facie one rather than some native title rights. Given that native title claimants need only establish one right or interest to access the right to negotiate under the current act, the requirement that some rights be established is inconsistent with the other provisions of the act.Amendment agreed to.01:02:002491Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—Mr Temporary Chairman, the Senate has amended the opposition amendment. The opposition's test is now N36 and 37 is, in effect, an amendment to the clause inserted by opposition amendment 36. I just want to make sure we know what has happened here.There is a little confusion. In effect, by recommitting N36 and agreeing to it, that effectively displaces our 73. So 73 disappears in effect. I do not know how that is done procedurally, but it has that effect. So this amendment is to 36.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—I think it will disappear in the fullness of time, Minister. I might not have explained it too well but I am sure it will disappear. Is it correct to assume that the Greens WA and Democrats amendment on sheets 957 and 969 will not be proceeded with?01:04:002491Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I confirm that, Mr Chairman.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Senator Bolkus, I am informed that you were foreshadowing a consequential amendment that is now no longer to be proceeded with.01:05:002491Bolkus, Sen NickSenator BOLKUSXE4SAALP00—The advisers have managed to inform us that inconsistency had been picked up in the mechanics of the Senate drafting and we do not need to proceed with it.Bill, as amended, agreed to.Bill reported with amendments; report adopted.2491Motion (by Senator Minchin) proposed:That this bill be now read a third time.01:05:002491Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I wish to say a few things on this third reading, Madam Deputy President. For us on this side of the parliament, the conclusion of this debate marks a day of shame. There is no shame to non-government senators and stakeholders who have worked tirelessly and creatively towards an acceptable outcome; no shame to the thousands of Australians who have written, faxed and phoned urging a broadly acceptable solution to the dilemma visited on all of us by the Prime Minister; no shame to ANTA, which has blossomed over recent months, or its constituent groups and bodies; no shame to the indigenous people driven by despair to depart from this place before the conclusion of this debate, but bucketloads of shame to the divisive opportunists who have basically left us standing at the abyss staring at a double dissolution—a future filled with doubt, discord and fear.This is the debate that we did not need to have this time around. This is a debate that we do not need to continue to have. We could have had some months of experience of an enacted, amended bill by now. We could have had validation. We could have been on the way to sorting out the backlog of claims before the courts and the tribunal. Last December, this Senate sent a clear message to the government. It said that, if we were to get a compromise acceptable to all the players in this debate, then the government had to give some ground on those four key sticking points—the right to negotiate, the registration test, the sunset clause and the application of the Racial Discrimination Act.For weeks, days and nights in the lead-up to this debate, all parties were involved in extensive negotiations with the government to try and find a way through. Indeed, up until even a few hours ago, Senator Harradine was trying his utmost to see if there was even the smallest glimmer of compromise on the part of this government on the most fundamental issue in the debate, the right to negotiate. But all efforts have been in vain.I think Senator Harradine, like all senators in this place, continued his negotiation in the hope that we were dealing with someone who genuinely wanted to lead this nation towards an accommodation on the contentious issue of native title—a person who, despite the many indications to the contrary that he has given over the last few years, really wants to bring Australians together to resolve our problems. But I think the evidence is that we were wrong. There was no hope. I regret to say I suppose there probably never was—and only for one reason, I must say, unfortunately, because it is only the Prime Minister who wants an early election. He wants to use the wedge politics that got him elected in 1996 to divide and conquer our nation again—Australian against Australian on the docks; Australian against Australian in the courts; Australian against Australian in the bush.It was Dennis Shanahan, I think, who recently said that this Prime Minister has ignored the cooler heads in his cabinet. I must say, at the end of 87 hours of debating, arguing or whatever with Senator Minchin, I have come to the conclusion that Senator Minchin himself may well be one of those cooler heads who wants an outcome. Instead, the Prime Minister has turned to his gut instincts that have seen him let Australia down on social issues so many times in the past. We do not forget that it was the Prime Minister who was one of the leading opponents of sanctions against South Africa during the 1980s. We do not forget that it was this Prime Minister who spoke against the adoption of the Racial Discrimination Act in 1975. We do not forget that it was this Prime Minister who spoke out against Asian immigration in 1988. We must not forget also that it was this Prime Minister who led a party room revolt against John Hewson's plans to take a constructive approach to the debate on native title in 1993. What we cannot forget is that it was this Prime Minister who failed to stand up to the racist views of Pauline Hanson and who is yet to refuse her preferences.We require leadership and we are not getting good leadership. It is not good leadership to take this nation to a deeply divisive double dissolution election based on race, an election which will divide black against white, city against country. It is not good leadership to act out of fear of Pauline Hanson.It is interesting that the bushfire has been lit and, we see in the Bulletin poll this morning, the National Party vote in Queensland has gone down some 13 per cent and the One Nation vote stands at 13 per cent. The Nation al Party vote in Queensland has been halved by the bushfire that you have allowed to blow out of control. It is the National Party that could very well be the victims of the bushfire that they fanned.Our concern, though, is that Australians will suffer. Farmers will suffer because they will not be given the certainty they deserve and which was theirs for the asking in the proclaimed bill last December. Stakeholders and miners will suffer because their ventures will be held up in the courts for decades to come and ordinary Australians will have to pay the bill. And our nation suffers in other ways. What is important is not what the international community thinks of us, it is how we think of ourselves and how we can live with ourselves.I am one of those who thinks that there does not have to be an election based on this Senate amending, in minor part, this Native Title Amendment Bill. The government has got 90 per cent of what it wants. In respect of that, I think the government should now step back from the brink, take the bill, enact the bill, get on with government and let the nation lead a better future. If there is a double dissolution on this bill, there will not be a joint sitting of the parliament until early next year or late this year. You will be denying certainty to farmers, miners and stakeholders for a prolonged period. You could have given them certainty last December. For gross based political purposes you have been denying them that certainty for 12 months.When this bill first came to the Senate I reminded the government of their covenant with the nation, the responsibility they took in accepting office, and the terms they inherited from the Keating government to continue to integrate the concept, expression and exercise of native title in the social and legal framework of this nation. That is still their challenge.In closing, there are a few people I would like to thank because this has been a marathon effort. There have been some 87 hours of debate in the parliament: 56 or so hours last time and over 30 hours this time. I thank the Senate staff, Rosemary Laing, Kathleen Griffiths and Rosa Ferranda, and all the other staff of the Senate Table Office. I thank my colleagues Kim Beazley, Gareth Evans, Daryl Melham, Stephen Smith and Neil O'Keefe, who form the core group of our native title working group, a group that has worked extremely well together and, contrary to all the expectations and propaganda of the government, has worked cohesively together. It could not have got here without the Whip and the Deputy Whip in this place and the work that they have done.In terms of advisers and support staff, I would like to thank Anna George, Sarah Crichton, Julia Clifford, Christine Evans, Chris McGrath, James Cullen and Nina Gerace. Of the other people, and there have been heaps of people who have helped in one way or another, there has been a group of lawyers who do not get paid the amount of money that lawyers working for the top end of Collins Street get paid. Their dedication, their application, their tenacity, their strength and their intelligence cannot be underrated. We have had people like John Basten QC and Ron Castan, Chris Athanisiou and Angus Frith who have made enormous contributions and who have worked extremely well under pressure. These are people who basically give more than they will ever get paid for.In the adviser boxes, Simon Banks from my office, James Fitzgerald and Mike Megaw together have been able to plough through the work, put submissions to us and ensure that a constructive alternative has been put to the parliament and to the nation. I thank all of them. In closing I say, once again: step back from the brink, we do not need an election on this issue.01:15:002493Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I, too, want to speak in the third reading debate tonight. A feature of this debate this time has been the changing and changed positions of all parties in this chamber apart from the government, sad to say. Although tonight I was going to be fairly critical of the ALP and Senator Harradine, I think the outcome we achieved in the last hour really makes me not want to do that.I have to say that we could have avoided some of that pain had we perhaps achieved the outcome that we achieved tonight before we got to the point where we had to recommit a number of votes. The real people who have had to endure our dancing around in terms of amendments and all of the debate that we have had have been the Aboriginal people. I believe that, in terms of the bill which will now go to the House of Representatives in which the government has achieved virtually most of its objectives, it is the Aboriginal people who are the losers.The Democrats were certainly heartened to see Senator Harradine reject the unfair six-year sunset clause and also to vote on the very recent recommitted amendment of the Labor Party, because we believe that that is the best option in terms of the threshold test. I have to say that I think all of us were chastened today when we saw the indigenous people leave this parliament in tears. They were in tears because they knew that they were not going to get a fair and just outcome. They knew that, despite all of their efforts, the intransigence of the government would result in a bad outcome for Aboriginal people, and they were right. We know that they are in a state of deep grief tonight. They have been on my phone in tears, trying somehow or other at this late stage to get a better outcome. Our hearts are with them.It makes the Democrats very sad that it had to come to this before we would pay attention to the fact that the people most affected are those who, in the end, were not only the original owners of this land but the nurturers and keepers also of a land to which we came very late. But they kept it for us and they would like to make a contribution to the future of Australia, a contribution which is unique and valuable and precious which they alone can make. If we continue to shut the door against that contribution, then we will never be the nation that I am sure we all want to be.At the beginning of the debate, we said that we would keep faith with the High Court's decision on Wik. We accepted that the 1993 legislation had some problems and needed some fixing to make it more workable, less vulnerable to ambit claims and fairer all around. But we said that we would not support extinguishment of native title rights which may co-exist with pastoralist rights on leasehold land. We have maintained this position right up to this moment.Throughout the process we have sought to represent the interests of the National Indigenous Working Group; a group established to negotiate their rights. But it takes at least two parties to negotiate and the government has not had a bar of it. I consider it a privilege to have been able to facilitate, to the extent that we are able, the indigenous position. It has for me been the most memorable—and in some ways sad in terms of outcome—experience of my parliamentary career.On behalf of the NIWG, the Democrats co-sponsored—with Senator Margetts and the Greens—the working group's position in total. We did it in December last year and we would not flinch from doing it again. So it is in accordance with the wishes of indigenous people and in accordance with our sense of fairness, justice and humanity that the Australian Democrats will oppose the Native Title Amendment Bill 1997 [No. 2] , as indeed we did in 1997.In doing so, we send a clear message to Prime Minister John Howard and his coalition government. The message is this: as the trustees of the integrity of this nation, you have failed to serve all of your people; as the custodians of reconciliation, you have abrogated your responsibilities; and as the leadership of this nation, you have failed in your office. Justice has not been done with this legislation. It does contain Tim Fischer's bucket loads of extinguishment, to which we should now read `bucket loads of dispossession'.We approached this bill, as we did in 1997, with an aim to make good the government's legislation, but the government has not shared that goal. The government has not approached this debate in good faith, I believe. It is unfortunate that, in the government's quest for a double dissolution, it is comfortable in the use of indigenous people as an electoral football.For me the most telling part of this debate was when I asked Senator Minchin what the cost was to indigenous people of cultural decimation, the stolen generations and, in deed, the cost of genocide. He did not have an answer. He has not been silent, however, on the alleged cost to industry of native title. That is the problem. Today indigenous people walked out of this parliament, their eyes filled with tears and their hearts heavy with sadness. I share their sadness and I am not ashamed to say that I shed a tear with them.Out of this debate one thing has been certain—that is, while the government have been successful in breaking the hearts of our indigenous brothers and sisters, they will never break their spirit. They are survivors in this land and long after we have gone their descendants will endure.Politics has taken precedence over principle in this debate and that is sad. But ultimately the path to coexistence and reconciliation is on the ground with ordinary people working things out face to face. That process will continue, regardless of the laws made in this place and all the divisive rhetoric from the government. The Democrats will not be party to helping the government cynically manipulate this legislation for electoral purposes and that is why we reject the Native Title Amendment Bill 1997 [No. 2] .In closing I, too, thank all of the National Indigenous Working Group, but especially the person appointed to liaise with the Democrats, Aden Ridgeway, and all of the parliamentary staff—the greatest bunch of civil servants I have ever come across. They are wonderful people. I also want to thank the team which worked closely with me—Jonathan Tonge, John Davey, Susan Brown, Jim Downey and Vivienne Wynter—all of my colleagues who have stood with me in this debate and, of course, all Democrat staffers.01:24:002494Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—It is probably appropriate in my third reading contribution that I read out the words of the statement made today by Gatjil Djerrkura and Geoff Clark from ATSIC on the process.In a press release dated today and headed `Political process fails indigenous people', they say:The native title legislation before the Senate is unacceptable to Aboriginal and Torres Strait Islander people and should be voted down.We agree the National Indigenous Working Group on Native Title has done its best to communicate its concerns to Parliamentarians but can do no more.The legislative package is unfair, unjust and discriminatory. As such it is setting the foundations for long-term and bitter division in the Australian community. Given the course of the debate so far, any compromise reached in the Senate today is certain to fall far short of the expectations of indigenous Australians.The government has been single-minded in its determination to reverse the success indigenous people have achieved in the highest court in the land. Even when succeeding with most of its legislation, the government has come back to continue the job of destroying the prospects for exercising our rights.We face considerable extinguishment of our native title property rights in a way that goes far beyond the common law.Miners have been rewarded because the states that ignored the federal law have been allowed to validate mining titles issued without regard for the Native Title Act.Pastoralists have been rewarded with the potential for a wide range of diversification despite the terms of their leases. The implications of this go beyond the concerns of indigenous people.Let there be no doubt that the legislation as it stands will serve neither the interests of future generations of indigenous Australians nor non-indigenous Australians.It seems we can have no faith in the government to protect our existing rights but we will continue to resist this legislation by all the legal means possible.It became quite clear during the course of the last few weeks, but especially today, that there could be nothing but a shameful outcome to this debate. There is the chance for the Senate to still do something for the indigenous people of Australia, and that is to vote in such a way as to indicate they have listened to the call—the call made here by the National Indigenous Working Group and the call that I know many senators have heard from a wide variety of sources to vote down this bill.People are watching not just to see the outcome of what the government will or will not do with its bill, and that is quite clear, they also want to see what the intentions are of any alternative government in relation to this bill. That is why I implore, urge, beg the ALP to do the right thing now and state by your vote what you would do when you are next in government. Voting for this bill continues the shame.I want to express my personal thanks to Matthew Fagan for his tireless work, to Alan Carter for keeping things together, to Gary Coor for keeping us sane and providing legal advice, to the National Indigenous Working Group for their amazing work, to my colleague Senator Bob Brown, to Margaret and Ben and the rest of our staff, and to Rosemary Laing and the Senate clerks.I would also like to give a special thanks to Senator John Woodley and John Davies of the Democrats for their working with us so helpfully and closely to get a result which we believed would be much, much closer to justice than has been achieved tonight. I thank all those people who, when the times were tough, managed to get through letters, phone calls and faxes of support. As I say, the only potential for not bringing total shame may be that the Senate provides the message to the government and the community that this bill is unacceptable.01:30:002495Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I wish simply to commend this bill to the House of Representatives, to the Prime Minister, to the government and to the Australian people. I will be voting for the third reading. I believe that that is the responsible thing to do, because I have a firm view that this bill should become the law of the land in the spirit of recognition and reconciliation. It has provisions better than the bill that was presented to the Senate. It is a better bill for achieving a fair, decent, just and honourable outcome for all affected by the native title issue.This bill is based on certain fundamental principles. First, common law native title rights, as recognised by the historic Mabo decision, are preserved. They have not been further eroded, reduced or rendered valueless. I believe that that is the objective of all who have participated in the debate on this issue in this chamber: it may be their desire but, unfortunately, the acts do not meet with their desire. But the bill does not further erode, reduce or render valueless those native title rights. Second, there is a framework for government, corporations and individuals to take into consideration those native title rights and interests when their activities may seem to be affected or reduced by them. Third, there is a recognition that the system for the recognition and determination of native title rights and interests must be workable and fair to all involved. Fourth, recognised weaknesses and shortcomings in Australia's native title law are reduced or eliminated by this bill.With this bill the Senate has, I believe, achieved such an outcome. There have been many individuals and sources who have contributed to this result. Of the government's 90 amendments, I have supported probably 90 to 95 per cent of them. Other successful amendments were proposed by other parties within this chamber and by me. There is, in this bill, I believe, a just balance for both indigenous and non-indigenous Australians. This bill preserves the common law native title rights of indigenous Australians and, unlike the unamended bill from the House of Representatives, does not seek to bring about extinguishment of those interests when such interests have not been extinguished at common law.The bill preserves the right to negotiate for registered native title claimants and does not restrict or diminish the areas in which this important entitlement applies. It is one of the guarantees which this parliament has given to our indigenous people to preserve and enhance their common law native title rights and interests. The government's proposals, I suggest, would have seriously reduced those rights, with no compensating benefits to indigenous Australians. New procedures, including significant involvement of state based systems, for the determination of native title are features of this bill. These are new and relatively uncharted waters, and I would have thought that the response by the states would have been more encouraging than it was late this afternoon.The rights of indigenous people and their native title interests are further protected by the new provisions in this bill on the relationship between the Racial Discrimination Act and the Native Title Act. Where any of the terms of the act or acts based upon such terms are ambiguous in their meaning and in their effect, such ambiguities are to be resolved consistent with the RDA. This is an important protection for indigenous interests. A principal feature of this bill is the recast applications and registration procedure for native title claims. The bill introduces a claims procedure which should ensure that genuine native title claimants will have their claims registered. These claims will clearly set out the facts upon which the claimants rely for a community claim authorised by that community. The application to the land and other interests flows from their traditional laws and customs, observed by them as practicable. In this way, the claimants establish their descent and connection with the particular area where their forebears lived in 1788. The claims procedures have made provision for recognising the tragic history of families who have become part of the stolen generation or who, in respect of their traditional lands, were excluded by land-holders—the locked gates phenomenon. The claims process provides that the claimants will usually be certified by their regional or state representative body who is charged with the task of supporting claims on behalf of the true native title holders in a given area.The draconian requirement that the claimants must establish to the satisfaction of the registrar all the native title rights and interests set out in their applications or suffer loss of their whole claim has been reversed. Claimants must now be registered in respect of all rights and interests for which they have facts and circumstances in support to the satisfaction of the registrar. This is the registration process for the right to negotiate and is built upon a new claims procedure through filing in the Federal Court for native title claims which might not meet the registration test or do not seek the right to negotiate. This is a revised system reflecting three years of experience and has a wide consensus of support among the stakeholders, state governments and indigenous communities. If the government accepts the bill in the House of Representatives, this system should now bring virtually to an end the troubled episode of paper claims, widespread overlapping claims and other anomalies which have caused anger and frustration among both indigenous and non-indigenous Australians.With the new threshold test which applies to claims filed since 27 June 1996, there is now the real prospect of a new start and the emergence of fewer but better researched and better based claims by genuine descendants of indigenous peoples who occupied various areas of Australia in 1778. I believe there are few non-indigenous stakeholders who are not now prepared to deal with genuine claimants with proper evidence of connection, descent and observance of traditional laws. Native title may finally begin to find its real place and level amongst the existing entitlements and the future development of our indigenous peoples. It is not a panacea for all ills suffered by our indigenous peoples, of course. It is truly regrettable that unrealistic hopes have been built around common law native title.The new threshold and registration test is very important in this legislation—even the one that was adopted in the last hour. It may represent a unique opportunity for the parliament to re-establish a viable native title claims process. If we get the threshold test right, I believe the government, the state governments, pastoralists, miners and the indigenous communities will be the strongest supporters. There will be no satisfactory alternatives on the issues that I have mentioned if this bill does not become law. I seek leave to have the remainder of my speech incorporated into Hansard.Leave granted.The speech read as follows—To the major stakeholders other than the indigenous, I simply say this: Native Title claims will be more transparent, more detailed and better handled in contrast to previous experience. This system can work and should be made a focus of cooperation and involvement by both pastoralists and miners.Finally, I say to the Government that in this Bill more than 80 per cent of its proposals have been adopted. It is a more balanced and just bill than the Government's initial proposal. The last three months have seen the Government extensively amend the Bill after wide consultation. These amendments have been adopted, overwhelmingly.There is no justification for the Government not to sign this Bill or even to contemplate sending the country to an election. It would be both unwarranted and unconscionable. It would also be completely worthless as a solution in the near future of the outstanding issues.I do not believe that even in a worst case situation of a double dissolution there will be any speedy resolution to validation or to the claims process or to the other weaknesses in this legislation.Any election on this Bill would mean the Government allowed political ideology to triumph over the national good and national reconciliation. It is a fearful prospect.Australians both indigenous and non-indigenous deserve better.This Bill may not be perfect. Little that this Parliament does ever achieves that standard. But this Bill is better than the Government's Bill and represents a significant improvement on the existing Native Title legislation.All Australians, indigenous and non-indigenous are significantly advantaged. These advantages should be grasped immediately. This Bill should be voted into law by the Government in the House of Representatives .01:42:002497Boswell, Sen RonaldSenator BOSWELLYE4QLDNP10—Firstly, let me put something to rest. The bill, as amended, does not deliver 90 per cent of what the government wanted. In fact, only two points of the 10-point plan remain substantially intact as a result of the Senate's deliberations. That is 80 per cent gone, not 80 per cent won. None of the four sticking points—the RDA, right to negotiate, threshold test and sunset clause—have gone through. Only validation and water management survive intact. The rest have all been amended in opposition to the government, some more than others.We can go through them point by point. One, validation: we will give that a tick, that remains satisfactory. Two, confirmation of extinguishment: that is not delivered because of the introduction of the concept of revival of native title interest. Three, provision of government services: not delivered and the situation is potentially worse than it is at present. Four, primary production: that has not been fully delivered because of the restrictions on diversification and off-farm activities.Statutory access has not been delivered in its original form. The right to negotiate has been confirmed on pastoral leases. The proposed alternative state provisions have been rejected. There is no exemption for infrastructure. Renewal exemptions are heavily qualified. We are now up to point seven, future commercial and government development. This has not been delivered specifically on towns and cities and government infrastructure. Water we can give a tick to. Out of the whole 10-point plan, that is the second and last tick to get through.The management of claims has not been delivered with the recent change tonight to the higher threshold test. The sunset clause went down. On agreements, the government opposed several amendments put by the opposition. On top of that there is the eleventh point, the RDA, which goes to the overall workability of the Native Title Act and seriously undermines it. So let us have no more about how much of the government's legislation has gone through, because so much of it has not.I would like to now address the issue of a double dissolution. Just a couple of days ago we had the Deputy Opposition Leader, the former foreign affairs minister, Gareth Evans, make an offensive and extraordinary remark. He accused the Prime Minister of never being so happy as when he is bashing black fellas. This is a former minister of the Crown of the Commonwealth parliament, a QC and a person who entertained ambitions of leading the United Nations. If such a person finds the normal cut and thrust of politics too much, how will candidates new to politics in the heat of an election debate, with native title the big issue, be able to keep from making unhelpful comments? It is tempting to think that all debate in the public arena will be conducted as if it were in this chamber tonight during the committee stage. That debate was mostly restrained, careful and backed up by professional advice on complex issues. But come an election, the committee of the Senate will not be in charge.So far throughout this debate the Greens and the Democrats have dominated the floor. This has resulted in a very uneven and unbal anced debate. There are hundreds of thousands of Australians who have entirely different views. What we have heard over the past fortnight is generally the narrow left wing view that is shared by a minority of Australian people. Those are the hard political facts which were borne out recently by research into the opinions on native title around the country. If this were not true, then Senator Brown would be the Prime Minister and Senator Margetts would be the Treasurer. But for all their monopoly of the debate, they are way off the mark. The debate and a double dissolution will be out of their hands and run away to who knows where.This has been a most frustrating debate for me and my constituents—the families of the bush, black and white, and the workers, black and white, who depend on our great rural and mining industries. Let there be no doubt that Labor has spearheaded the defeat of an acceptable regime for native title. Labor has given way to its left wing. The left wing has hijacked the debate. Labor has let down the blue-collar workers in their hundreds of thousands who work in agriculture and mining and whose families form the core of regional communities. Labor has put the ribbon wearers in front of the workers in mills, abattoirs, sugar mills, food processing factories and mines—the support services and their employees.Labor has forgotten the true believers. Labor has abandoned black and white in regional Australia. Labor has said to them, `We don't need you. We don't want your families to have a secure financial future and jobs for your kids. We would rather see the $30 billion go offshore instead of into mining ventures.' Labor is saying, `We would rather see delay after delay, court hearing after court hearing, than see families get a break.'We have heard about the tears of Aboriginal people tonight, but I want to tell you that I have seen other tears—tears of frustration in farming families trying to get their message across in this hostile environment here in Canberra. The debate in the Senate has been monopolised by the Greens. I believe that black and white families stand to gain more from a properly performing primary sector which recognises the common law right of native title while settling appropriate parameters on the statutory right to negotiate. I believe the $30 billion forgone this decade in mining projects is a tragic waste of potential for black and white families.I believe the government's proposal is the way forward for all Australians. That is the inclusive way. A double dissolution is the divisive way and the only democratic option left if this bill is amended beyond the capacity of a duly elected government. I ask the Senate to reconsider its position.01:50:002499Brown, Sen BobSenator BROWNQD4TASAG00—I cannot support or commend this bill and certainly will not be—Senator Boswell interjecting—10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Order! Can I have some order please, Senator Boswell.Senator Boswell interjecting—10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Order! Senator Boswell! Can I have some order and silence. Senator Brown has the call.QD4Brown, Sen BobSenator BROWN—We will not be voting for this bill.EP5FERGUSONSenator Ferguson—Surprise, surprise!QD4Brown, Sen BobSenator BROWN—The interjections from those opposite indicate that they recognise what they expected. They got what they expected because there was such consistency in the stand that we took in this legislative debate. I want to, at the outset, thank Margaret Blakers and Ben Oquist on my staff and the staff of all of those in the Democrats and Greens corner of this chamber. I also want to thank my fellow Green member, Dee Margetts, who has been such a remarkably good advocate for returning fairness to this legislation, and Senator John Woodley, who has also brought a great deal of the honour to this debate that Senator Harradine spoke about. Why we will not be voting for this and why I suspect the Labor Party will not vote for it either is because, as Senator Bolkus has said, this amended bill gives the government 90 per cent of what it wants. Senator Harradine said it is 95 per cent of what it wants. Whichever way you look at it, that sums it up. That means the indigenous people get 10 per cent of what they want or five per cent of what they want. You can take it variously. Let me quickly reiterate what is lost as far as they are concerned—that is, their right to negotiate on the future of their lands and their lives in almost all respects into the future, the exception being mining, with some restrictions put on that. We recognise their claim after so long a period of suppression to their land but then deny them any say `in the future'. No wonder the National Indigenous Working Group, with tears, as has been commented on today, has finally turned their backs on this parliament, that they should have expected a better outcome from, and walked out today. Let me repeat what they said. They described this bill, this Howard government 10-point plan, as an immoral and indecent proposal by the government which takes away fundamental rights of indigenous Australians. Whichever way you look at it, what we have ended up with in the Senate tonight is an immoral and indecent proposal by the government which takes away 90 per cent of the fundamental rights of indigenous Australians by the descriptions of others in this place. Moreover, the Indigenous Working Group says that this bill will be challenged every step of the way. They then made a call to the people of Australia to stand strong with them. I want to quote the Prime Minister of this country when he delivered a personal apology to the indigenous people at the Aboriginal reconciliation convention in Melbourne in May this year. He said:Personally, I feel deep sorrow for those of my fellow Australians who suffered injustices under the practices of past generations towards indigenous people. Equally, I am sorry for the hurt and trauma many people here today may continue to feel as a consequence of those practices.. . . . . . . . .Australians of this generation should not be required to accept guilt and blame for past actions and policies over which they had no control.The problem is that there is grand theft of indigenous rights built into this legislation as amended, let alone the original proposition that came into this place. There is the theft of those rights.The Prime Minister has to accept guilt and blame for not only that larceny of indigenous people's rights but also the consequences which this country as a whole will have to bear as a result of that theft as we go into the next century. The indigenous people cannot be expected to simply give, give and give, while their aspirations for the future are taken from them. The point has come where I expect you can hear the signs, in the anger of some of the submissions we have had put to us in the last two weeks, that there will be a rebellion against this continued threat.I finish with this. There was the stealing of the lands and the horrible history that we all have to live with following 1770 and 1788. There has been the disaster of the stolen generation. Here tonight, the Senate and this parliament, whether you look at the amended bill or the original one that came in here, is being asked to give its approval to the stealing of rights from the indigenous people of this country. Is there anybody who is going to be party to that theft who is going to say, `And they should cop it'? Is there anybody who really says, `We cannot understand that the indigenous people should be not satisfied with this taking away of their rights and that there should be no reaction into the future and that reaction is not going to affect all Australians'? It is going to be to the detriment of all Australians, and I feel ashamed that we could not get a better outcome from the rows of thinking, representative Australians that we have in this place. I will feel more ashamed if it is just left to the Democrats and the Greens to be here to vote against this piece of legislation. One of the problems is that the indigenous people have essentially had to put up with the frustration of not being able to take part in this debate and have had to contend with trying to lobby as best they could, take second best and then take the consequences without having a real say.Finally, the working group has called on supporters in their press release today to ensure the 10-point plan is thrown out and to work closely with indigenous Australians to achieve this. I endorse that call. We Greens— and I am sure it is the same for the Democrats—will be endorsing that call if we do get an election, and it appears obvious that that is what is going to happen as a result of this legislation. There will be a great challenge on every thinking Australian to search their heart as to whether they want to be part of the theft that is involved in this legislation too. This is a matter for changing votes. This is a matter for people reconciling themselves to history and making sure they do not compound it into the future. The challenge is to hear what the indigenous people are saying and to stand shoulder to shoulder with them, no matter how turbulent the coming months are, to ensure that they get a better deal in the coming century.01:59:002500Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I conclude this third reading debate by saying that I personally am very disappointed by the outcome of now, I think, 87 hours of debate on this bill. The government has approached the period since December in good faith, has sought to consult, discuss and thrash around all the issues involved among the parties involved in this debate to see if there was any way in which we could resolve our differences and get a bill that was acceptable to the Senate within the framework of government policy. And in that vein we moved 99 government amendments to this bill in the course of this debate which were all in that spirit—designed to address concerns raised by the other parties in the original bill back in November-December. But, regrettably, another 100-odd anti-government non-government amendments to the bill have also been accepted by the Senate and we are not able to accept them.Our approach to this whole issue has been to try in a practical way to identify the real problems with the Native Title Act, to fix those problems after four years experience of that act and, most particularly, to incorporate the consequences of the Wik decision, which were manifest and quite significant, into the Native Title Act.You have to keep remembering that the Native Title Act, for all the goodwill with which it was passed, is not working for the benefit of Aboriginal Australians. We still only have two determinations of native title after four and a bit years of operation of that act, one of which resulted in the extinguishment of that native title. The other one is the result of an agreement by, of all people, the Queensland government for the exercise of native title rights on DOGIT land in Queensland. So it is a very bad outcome for Aboriginal people from the operation of the Native Title Act, which manifestly does not work. We have tried to fix it. From my point of view, we have spent two years now developing a package of amendments to this bill, and I am particularly frustrated that we still have not yet seen any amendments to the act.Tonight the Senate has finally passed amendments to the act which are unacceptable again in four out of four of the key areas. For a while, we had two out of four, but that was before lunch. After lunch we lost one of them, and after dinner we lost another one. So we are back down to zero out of four from our point of view. They really are fundamental. It is not fair or accurate to say that we got 90 per cent of it and we should take it. If you get the building built, but the lifts do not work, the building is no use to you. Frankly, we have got a building where the lifts and the lights do not work.Apart from the four key areas, there are also a range of amendments in other areas that we have not identified publicly but which cause significant concern and hardship to rural and regional Australia. Indeed, it would appear that the bill is actually worse than it was last December.I would reiterate that, from our point of view, this bill always was a compromise. We had a lot of differences in our own ranks. We worked them through. We came up with a bill which everyone in the coalition could live with. It did not give any particular interest group in the community all that it demanded of us—not the Indigenous Working Group, not the mining industry, not the farming industry. We approached this from the point of view of our national responsibilities to produce legislation in the national interest which did not give any interest group what it sought from us.But the bill does fundamentally accept the Mabo and Wik decisions. It does seek in a fair and practical way to build those decisions into Australia's land management system. This is a difficult concept for all Australians—a common law, inalienable property right only available to people of a particular race. That is not an easy thing to build into 200 years of settled statutory law. We have tried hard, and we think that what we produced is fair and equitable. All the way through we have had as our criteria fairness, equity, practicality and certainty. We wanted a workable outcome. We have not got it. The Senate has passed amendments that do make the bill, in our view, unworkable.I simply finish by thanking all those senators who have spent some 87 hours in here together debating this bill. I think it was debated in general terms in a spirit of goodwill and generosity, apart from a few differences that seemed to occur from time to time on that side of the chamber, which we watched with amusement. But I do think we have, as senators, established once again that the Senate is a chamber in which these very serious national issues can be debated fairly and sensibly, and without the rancour which often distracts those in the other chamber.I particularly thank the Wik task force on my left who have worked long and hard to try to produce a sensible outcome. I think everybody on both sides respect their work. I want to thank my own personal staff, particularly Senate officials, for what they have done. I conclude by wishing everybody a very happy Easter. Question put: That the bill be now read a third time.02:10:00The Senate divided. 0Abetz, E. Alston, R. K. R.Bishop, M. Bolkus, N.Boswell, R. L. D. Brownhill, D. G. C.Calvert, P. H.* Campbell, G.Campbell, I. G. Carr, K.Chapman, H. G. P. Collins, J. M. A.Conroy, S. Cook, P. F. S.Coonan, H. Crane, W.Crowley, R. A. Eggleston, A.Ellison, C. Evans, C. V.Faulkner, J. P. Ferguson, A. B.Ferris, J. Forshaw, M. G.Gibson, B. F. Harradine, B.Heffernan, W. Herron, J.Hill, R. M. Hogg, J.Kemp, R. Lightfoot, P. R.Lundy, K. Macdonald, I.Macdonald, S. MacGibbon, D. J.Mackay, S. McKiernan, J. P.Minchin, N. H. Murphy, S. M.Neal, B. J. Newman, J. M.O'Brien, K. W. K. O'Chee, W. G.Parer, W. R. Patterson, K. C. L.Payne, M. A.Quirke, J. A.Ray, R. F. Reid, M. E.Reynolds, M. Schacht, C. C.Sherry, N. Synon, K. M.Tambling, G. E. J. Tierney, J.Watson, J. O. W. West, S. M.0Allison, 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.Bill read a third time.Adjournment250210000PRESIDENTThe PRESIDENT—Order! I propose the question:That the Senate do now adjourn.250202:13:002502Heffernan, Sen BillSenator HEFFERNANC16NSWLP10—I will be brief in my comments this evening. Despite the late hour, I felt the significance of recent journalistic events must be placed on the public record. Distortion and manipulation of the truth by members of the Fourth Estate has been revealed to me this evening. The manipulation follows a curious path following an apparently misleading article entitled `Catholic warning to Libs on race poll' which appeared on page 2 of the Sydney Morning Herald on Friday, 3 April.The reporter suggested that Catholic priests will urge an anti-coalition vote on Wik. These comments are attributed to Bishop Chris Saunders. Bishop Saunders came to me last Friday, distressed by the article's untruths. To correct the public record, Bishop Saunders wrote to the editor of the Sydney Morning Herald on 5 April. He sought to disassociate himself from the headline and from some of the remarks attributed to him in the article, stating clearly that he did not say that Catholic priests would tell people to vote against the government.It is obvious from his letter that the journalist deliberately attempted to position the Catholic church in a party political manner to incite the racial debate in line with comments by Gareth Evans reported in the same article. The Sydney Morning Herald contacted Bishop Saunders and told him they would not print the letter unless it was revised. Bishop Saunders sent a revised letter dated 7 April 1998. On 7 April, Antony Lawes of the Sydney Morning Herald provided a letter to Bishop Saunders dated 5 April which he said the paper would be happy to publish. It was another blatant attempt by the paper to protect their own and position the Catholic church for the pending campaign. Bishop Saunders responded to Mr Lawes in a fax dated 7 April. He wrote:I am in receipt of your proposed revision of my letter to the Editor. I am not satisfied that your proposed revision adequately communicates my dissatisfaction with the headline `Priests attack Libs in Race Poll' and some aspects of the article which followed.In good faith I have already revised the letter once so as to emphasise the headline and not the report. However, the opening remarks attributed to me in the article are also of some concern for me as they are misleading, especially when placed in the context of the above headline.I was at pains in my interview to be non-party political and I am much concerned that extremism and moral misconduct, during a race poll, is a distinctly dangerous possibility at the hands of any politician of any political persuasion. The point is—I never once inferred or stated that `Catholic priests would urge an anti-coalition vote at a Wik election'. Bishop Saunders asked Lawes to publish his letter of 7 April unedited. He wrote:If you will not do so I would like you to inform me as to the reason.The editor has not done so as Bishop Saunders wished.In today's edition of the Sydney Morning Herald —that is, Thursday, 9 April 1998—the editor sunk to new depths in journalism and published his own letter in the name of Bishop Saunders. We often hear from journalists the cry of freedom of speech. The Sydney Morning Herald has denied Bishop Saunders the opportunity to correct the misrepresentation made against him and denied him his freedom of speech. I seek leave to incorporate the letters in Hansard .Leave granted.The letters read as follows—The EditorLetter to the EditorSydney Morning HeraldSydney N.S.W.Dear Sir,a misleading headline led an article in the SMH (2 April 1998) based on an interview with me. The Headline suggested that Catholic Priests will be telling people from the pulpit not to support the Government in a forthcoming election. This preposterous idea, according to the article, came from me. I wish to disassociate myself from the headline and from some remarks attributed to me in the article.I did not say that Catholic priests will tell people to vote against the government.What I did say was that if the forthcoming election devolves into a race poll and racist remarks are uttered about Aboriginal people and that the campaign is conducted in an immoral manner, by any candidate, then I would hope that priests would denounce such tactics and behaviour from the pulpit. I did not have in mind any particular candidates of any one party and I was not excluding the possibility that my remarks might well be applicable to circumstances surrounding any candidate of independent status.The prospect of a Race Poll continues to worry me. Such worries are justified in the face of the invective witnessed last week in Parliament in the course of the debate between the Prime Minister and the Deputy leader of the Opposition.I hope that Catholic people, ordained and non-ordained, will condemn any actions and words used by candidates to inflame race relations and slur the innocent.I appreciate this opportunity to set the record straight and to correct the injustice of inaccurate reporting and a misleading headline. I await your apology.Yours faithfully,+Christopher SaundersBishop of BroomeSecretary of the Bishop's Committee for Aborigines,5 April 1998Diocese of BroomeMost Rev. Christopher Saunders, DDBishop of BroomeDiocesan Office18 Louis StreetPO Box 76Broome WA 6725Tel: (08) 9192 1060Private: (08) 9192 3334Fax: (08) 9192 2136The EditorLetters to the Editor sectionSydney Morning HeraldSydney NSW 2000Dear SirI write to protest the misleading headline "Priests to attack Libs in race poll" (SMH April 1998) which lead an article that included comments I made to one of your reporters. Some readers may have inferred, in light of the headline, that Catholic priests will be telling people from the pulpit not to support the Federal Government in a forthcoming election. I wish to disassociate myself from this erroneous headline and the opening remarks attributed to me in the article.I did not say that "Catholic priests would urge an anti-Coalition vote at a Wik election . . . " What I did say was that if the forthcoming election devolves into a race poll and racist remarks are uttered about Aboriginal people and that the campaign is conducted in an immoral manner by any candidate, and I stress any candidate, then I would hope that priests would denounce such tactics and behaviour from the pulpit. I did not have in mind candidates of any one party, and I was not excluding the possibility that my remarks might well be applicable to a candidate of independent status.The prospect of a Race Poll continues to worry me. Such worries are justified in the face of the invective witnessed last week in Parliament on Wik-related matters. I appreciate this opportunity to set the record straight.Yours faithfully+Christopher SaundersBishop of BroomeSecretary Bishops' Committee for Aborigines7 April, 1998FACSIMILEDiocese of BroomeMost Rev. Christopher Saunders, DDBishop of BroomeDiocesan Office: 18 Louis StreetPO Box 76BROOME, WA 6725Tel: (08) 9192 1060 Private: (08)9192 3334FAX: (08) 9192 2136 Private: (08)9192 3335Date: 07 April 1998Attention: Antony LawesOrganisation: Sydney Morning HeraldFacsimile Number: 029282 3492Sender: Bishop Christopher SaundersDear Mr Lawes,I am in receipt of your proposed revision of my letter to the Editor of the Sydney Morning Herald, 7 April 1998.I am not satisfied that your proposed revision adequately communicates my dissatisfaction with the headline `Priests to attack Libs in Race Poll' and some aspects of the article which followed.In good faith I have already revised the letter once so as to emphasize the headline and not the report. However, the opening remarks attributed to me in the article are also the cause of some concern for me as they are misleading, especially when placed in the context of the above headline.I was at pains in my interview to be non-party political and I am much concerned that extremism and moral misconduct, during a race poll, is a distinctly dangerous possibility at the hands of any politician of any political persuasion. The point is—I never once inferred or stated that "catholic priests would urge an anti-coalition vote at a Wik election."I have long admired the SMH as a vehicle through which freedom of speech might be preserved along with the integrity of innocent people. For my part I have checked the course of the interview in Canberra with a witness who accompanied me to the Press Office. I have no hesitation in testifying to the accuracy of my letter to the editor.I would like you to publish my letter of 7 April unedited. If you will not do so I would like you to inform me as to the reason.I am sure you have already noted that my letter of 7th April is less than the prescribed 250 words. Yours faithfully,(Signed)+Christopher SaundersBishop of BroomeI wish to protest the preposterous headline "Priests to attack Libs in race poll" (Herald , late edition, April 3) on a report of remarks I made about the worrying prospect of a race poll.I did not say that Catholic priests will tell people to vote against the government. The point I sought to make was if the forthcoming election devolves into a race poll and racist remarks are uttered about Aboriginal people and that the campaign is conducted in an immoral manner, by any candidate, then I would hope that priests would denounce such tactics and behaviour from the pulpit.I did not have in mind any particular candidates of any one party, nor did I exclude the possibility that my remarks might well be applicable to independent candidates.Christopher SaundersBishop of BroomeSecretary of The Bishop's Committeefor AboriginesBroomeApril 5250402:16:002504Lundy, Sen KateSenator LUNDY7G6ACTALP00—I rise this evening once again on the issue of this government's management of the IT outsourcing program. Over the last two years I have had the opportunity to track this program and explore the role of OGIT and the Department of Finance and Administration in the process. As a result, there are a number of issues that are of great concern, largely going to issues of probity and the degree of public accountability attributed to some decisions regarding contracts let as part of or associated with the IT outsourcing program.There are several areas of concern. The first relates to how this government managed to completely compromise a model of selective sourcing that utilised the in-house strengths and still capitalised on the innovation our private sector has to offer. They have departed from the principles of competitive tendering and contracting out established by the Industry Commission report by excluding the opportunity for existing in-house services to benchmark their costs and subsequently compete for the work. The whole approach won the support of only the Department of Finance and the Department of the Prime Minister and Cabinet in the original cabinet submission upon which the government justified the decision to outsource in this way. All other agencies voiced a plethora of concerns.The second area of concern was the appalling disregard for the established competitive tendering process witnessed with the piggybacking of the Department of Finance contract on a pre-existing contract between IBM and the Department of Veterans' Affairs. There is no paper trail with the negotiations surrounding this deal. It was done over the phone—a practice that has since become established in the Department of Finance.It is an interesting point that the agency heads involved in this deal were not prepared to sign off on it, although technically they could under the procurement guidelines—albeit they did, in my view, breach those procurement guidelines by bypassing the competitive tendering process. Ultimately, it was referred to the minister for signature. This contractual windfall for IBM was further expanded without competitive tendering processes being adhered to when DAS was abolished and the remaining sections integrated into the Department of Finance, subsequently called the Department of Finance and Administration.An interesting point is that during this process issues of probity were raised consistently given that IBM indeed had a contract with the Department of Finance at the time relating to the outsourcing work that was being done by that department. The probity auditor subsequently appointed by the department to address concerns, Mr Stephen Marks, was appointed following a direct solicitation by Gillian Marks via a phone call after competitive tenders for this contract had all been rejected.Another area of grave concern was the negative impact on Australian businesses. The government, in their laziness, opted for huge multi-agency outsourcing contracts that are only accessible by the big six IT corporations, permanently relegating Australian IT firms to subcontract status. This lazy policy has angered our innovative Australian IT sector. Sadly, we have already experienced the downside of this model with Select, a local IT company, coming out worse off in a tussle with EDS. EDS recently won the Customs IT outsourcing contract, and Select, although they successfully positioned themselves early in what was proclaimed by Minister Fahey to be the shining example of a successful partnership between local and multinational, as I said, came off worse.Minister Fahey went on to make hay with his industry development clause in the cluster 3 contract which, interestingly, attracted criticism from both the small and large players at the time. Again, this was lazy policy, but I will return to that industry development clause shortly.Upon the awarding of the first contract under the program nine months after schedule, again the minister spoke patronisingly of a role eked out for local companies, and he revelled in the scope of industry development requirements that he claimed would be enforced under the terms of the contract. However, there is no scope to scrutinise the adherence to the industry development obligations provided for in this contract. The industry is forced to rely on the minister's word for it, and credibility is something that Minister Fahey does not have. Unless this information is available to be scrutinised publicly, it remains a farce, and all that puff and bluster about penalties means nothing when it comes from Minister Fahey.The whole industry knows how obtuse he is. The whole industry knows that a minister who forces a formal, legally enforceable gag upon any interested party, including their spouses, has something to hide. Indeed, this is precisely what happened with respect to this government's IT outsourcing contracts. No-one is allowed to participate or to involve themselves either from a department point of view, as employees of the Public Service, or indeed as private sector parties expressing an interest, unless they sign this confidentiality deed.I would now like to turn to what Minister Fahey, his office, and formerly OGIT, now the Office of Asset Sales and IT Outsourcing, I believe have to hide. There has been a series of contracts entered into by the Department of Finance and Administration that raise serious questions of probity. The pre-existing relationships of the beneficiaries of these contracts are also of great interest.Shaw Pittman Potts and Trowbridge, a US based legal firm, were engaged by OGIT on the instruction of Greg Barns, an adviser in Minister Fahey's office. Yasmin King, operating under the company name of Flexible Resources, was also engaged by OGIT in the same way. Both Shaw Pittman and Yasmin King provided advice to the former Premier of South Australia, Dean Brown, with respect to the South Australian whole of government IT outsourcing contract with EDS.Although it was the former chief of OGIT, Andy McDonald, who entered into these contracts, it was apparently done with the explicit intervention of John Fahey's office. Dr McDonald's subsequent resignation has been shamelessly used by departmental officials—presumably at the behest of the minister's office—to deflect responsibility for these decisions, as was witnessed in the most recent round of Senate estimates.I have previously reflected harshly upon the motivation of Dr McDonald's sudden resignation, but these issues cause me to reflect now upon his position as agency chief, having to acquiesce to the demands of the minister. I guess it is not so surprising that he pulled the pin.With respect to Ms King's contract, worth $320,000, she was required to advise on industry development guidelines. She is quoted in the Adelaide Advertiser as saying, `I have a unique set of experiences and they saw some benefit in using them.' Shaw Pittman Potts and Trowbridge were also contracted to advise on industry development. Their contract is worth around $5 million but, as yet, remains ambiguous because it is set in US dollars and the final amount will relate to the exchange rate. A quite extraordinary fact relating to the Shaw Pittman contract is that estimates evidence shows that this multimillion dollar contract is only for three people over a period of 12 months in that particular office.Cutler and Co. was contracted to provide advice on industry development to the value of $70,000 and Gillian Marks has responsibility for industry development. There is another interesting link with Gillian Marks, which was also apparently involved in the provision of advice to the former Premier of South Australia, Dean Brown, on both the Adelaide Water and the EDS contracts. At the same time as all this advice was flowing to the government on industry development requirements, it is apparent that the Department of Industry, Science and Tourism drafted the industry development clause that ended up in the cluster 3 contract.What is the net result of this? We have over $5 million being spent or allocated by the Office of Government and Information Technology, now the Office of Asset Sales and Information Technology Outsourcing, for the explicit purpose of industry development. None of these contracts was subject to competitive tender. The question has to be asked: who are these people working for? It is quite clear that the outcomes of the industry development clause that ended up in cluster 3 do not serve the interests of Australian industry. We heard evidence before the Senate inquiry into IT outsourcing, which has already reported to this place, that there is a great deal of dissatisfaction, frustration and anger amongst Australian IT companies. What next for Minister Fahey? What is the next step for the government's IT outsourcing program? (Time expired)02:26:002506Senate adjourned at 2.26 a.m. until 2.00 p.m. on Tuesday, 12 May 1998, in accordance with the resolution agreed to this day.Documents25062506The following government documents were tabled:Australasian Police Ministers' Council—Administration and activities of the National Common Police Services—Report for 1996-97. Endangered Species Protection Act—1998 Review of the Endangered Species Protection Act 1992—Report by Dr NK Boardman, AO.Statement by the Minister for the Environment (Senator Hill) including summary of recommendations and the Government's preliminary response.Equal Employment Opportunity (Commonwealth Authorities) Act—Equal employment opportunity program—Health Insurance Commission—Report for 1996-97.2507The following documents were tabled by the Clerk:Civil Aviation Act—Civil Aviation Regulations—Civil Aviation Orders—Amendment of section 20, dated 31 March 1998.Commonwealth Electoral Act—Regulations—Statutory Rules 1998 No. 57.Defence Act—Defence Force Remuneration Tribunal—Determinations Nos 4-12 of 1998.Federal Court of Australia Act—Regulations—Statutory Rules 1998 No. 55.Patents Act—Regulations—Statutory Rules 1998 No. 56.Answers to Questions on Notice2508The following answers to questions were circulated:2508(Question No. 1009)10092508Allison, Sen LynSenator Allison1M6VICAD00 asked the Minister representing the Treasurer, upon notice, on 28 November 1997 :With reference to the answer to question on notice no. 651 (Senate Hansard , 10 November 1997, p.8628) in which the response received does not address the question raised, can responses now be provided for the following paragraphs taken from that question:(1) What agreement has been reached with local government in relation to the Government's intention to impose sales tax on corporatised council entities.(2) What is the timetable for its introduction.(3) (a) When was this proposal first announced and (b) why has the matter been unresolved for so long.(4) Is the Treasurer aware that many councils in Queensland, for example, are due to corporatise or commercialise their business operations.2508Kemp, Sen RodSenator KempWW4VICLPAssistant Treasurer10—The Treasurer has provided the following answer to the honourable senator's question:I do not have anything to add to the response provided previously.2508(Question No. 1084)10842508Ray, Sen RobertSenator Robert RayUI4VICALP00 asked the Minister representing the Prime Minister, upon notice, on 6 March 1998:Did the department agree to provide the Chairman and the Deputy Chairman of the Constitutional Convention 1998 with additional external staff resources to advise them for the duration of the Constitutional Convention; if so: (a) who were the additional advisers; and (b) what was the cost incurred by the department for the provision of such advisers.2508Hill, Sen RobertSenator HillBH4SALPEnvironment10—The Prime Minister has provided the following answer to the honourable senator's question:No additional external staff resources were provided by the Department to the Chairman and Deputy Chairman of the Constitutional Convention.Officers of the Department of the Prime Minister and Cabinet and the Australian Government Solicitor were available to provide advice and support for the Chairman and Deputy Chairman. The Department of the Prime Minister and Cabinet engaged the services of Mr Lyn Barlin, former Clerk of the House of Representatives, to assist it in provision of advice to the Chairman and Deputy on the development and administration of Convention procedures. Under a consultancy contract, the department paid $7500 for Mr Barlin's services provided before and during the Convention.The Chairman and Deputy Chairman also invited Mr Peter King and the Hon Mr Justice Howard Nathan to participate as honorary counsel for the duration of the Convention. No payment was made by the department for their participation, either as remuneration or for payment of expenses. The Government is grateful for the assistance they provided, which contributed materially to the outcomes of the Convention.2508(Question No. 1086)10862508Margetts, Sen DeeSenator MargettsDX5WAG(WA)00 asked the Minister representing the Minister for Immigration and Multicultural Affairs, upon notice, on 9 March 1998:Given that there are approximately 1300 East Timorese in Australia seeking to escape persecution under the Indonesian occupation of East Timor by seeking asylum under the Domestic Protection Visa category (866); given that the Government is threatening to deport these refugees on the grounds that they have a `right to live in a safe third country', namely Portugal; and given that on 21 February 1996 the then Shadow Minister for Foreign Affairs (Mr Downer) stated categorically to members of the friends of East Timor (WA) at the campaign office of Dee Kelly, Liberal candidate for Perth, that: `under a Coalition Government, Australian authorities, in assessing the claims of East Timorese for refugee status, would consider these claims solely against Indonesia, without reference to the dubious issue of Portuguese citizenship', reaffirming his statement in the Australian newspaper on 12 October 1995 that, `the fact is Australia has never considered the people of East Timor as anything but Indonesian since 1979, the latest claim by Mr Keating that they are Portuguese is simply absurd and hypocritical':(1) (a) Is the Minister aware of the comments made by Mr Downer; and (b) why has the Coalition's policy on this issue apparently changed.(2) Does the Australian Government regard Indonesia as having sovereignty over the land, the people and the natural resources of East Timor; if so, why does the Australian Government believe that Portugal should take responsibility for East Timorese refugees seeking asylum in Australia.(3) Has Australia, rightly, accepted refugees of the Jewish faith from the former Soviet Union and other places in recent times, despite the fact that Israel offers a `right of return' policy for anyone of the Jewish faith to take up residency in Israel; if so, why has the Australian Government refused to allow East Timorese refugees asylum in Australia when they are offered far less certain citizenship rights in Portugal.(4) Is the Minister aware of the nationwide Christian Sanctuary Network which intends to harbour East Timorese threatened with deportation; if so, how does the Government expect to proceed against nuns, priests, war veterans and other notable citizens when they undertake the civil disobedience which they have solemnly pledged to carry out on this issue.(5) (a) How is it intended to remedy the current discriminatory practice with regard to visitor visas, in which East Timorese are effectively being banned from being granted visas in cases where other, non-East Timorese, Indonesians would have little trouble entering Australia; and (b) is the Minister aware of the great distress being caused amongst East Timorese families who are being denied access to their relatives in genuine cases of intended short-term visits, for example for weddings and births.2509Vanstone, Sen AmandaSenator Vanstone7E4SALPMinister for Justice10—The Minister for Immigration and Multicultural Affairs has provided the follwing answer to the honourable senator's question:(1) This Government's policy towards applicants for refugee status in Australia has not changed.The Government's position is that each application for refugee status is decided on its individual merits and on a case by case basis with reference to the 1951 Convention Relating to the Status of Refugees ("the Refugees Convention"), as amended by the 1967 Protocol Relating to the Status of Refugees. The Refugees Convention is given legislative force in Australian law through the provisions of the 1958 Migration Act. Under the Refugees Convention, a person should not be afforded international protection if they have effective protection from a country of their nationality (that is, a country other than that from which they fear persecution). You would be aware that in its decision on 2 May 1997, the Full Bench of the Federal Court decided on the nationality of East Timorese asylum seekers (the Jong case). The court found no legal error was made by the RRT in the determination that certain East Timorese people (including Mr Jong, the applicant in the matter) are Portuguese nationals. The question in that case, however, related to the effectiveness of Portuguese protection. This is an issue that was sent back to the RRT for consideration.(2) The issue of Australia's de jure recognition of Indonesian sovereignty over East Timor is totally separate from and irrelevant to the issue of the determination of applications for refugee status under the Refugees Convention.The issue of whether an applicant for refugee status from East Timor is a national of Portugal or has access to Portuguese nationality, and therefore may fall within the provisions of Article 1A(2) of the Refugees Convention is solely a legal question which has been determined by the Full Bench of the Federal Court with regard to the existing Portuguese nationality laws.(3) Australia has not recently resettled people of the Jewish faith from the former Soviet Union as refugees.Our humanitarian resettlement program has, however included a Special Assistance Category (SAC) for Minorities of the Former USSR. This SAC has helped individuals usually resident in the former USSR who may not have met the definition of a `refugee' under the UN Refugees Convention, but who have nevertheless suffered substantial discrimination or severe distress because of their ancestry or religious affiliation. Such individuals had to have had close family links to Australia. This SAC is being closed because of changed circumstances in the USSR.If a person of the Jewish faith living outside Israel makes an application for a protection visa, and it appears that this asylum seeker has effective Israeli nationality according to Israeli nationality laws, then that fact would be investigated and that person may not engage Australia's protection obligations.With regard to the Portuguese citizenship rights of certain East Timorese, the Portuguese Government has made it clear that Portuguese nationals of East Timorese ethnicity have all the consequent rights and obligations of any other Portuguese citizen. (4) I am aware of the nationwide Christian Sanctuary Network and its intention to harbour East Timorese threatened with removal.Well meaning people are being encouraged to break the law by offering sanctuary to persons who may not have a right to remain in Australia. The Government urges those involved to obey the law.(5) Each visa application is assessed by a delegated decision-maker against the provisions of the Migration Act and Regulations, and is considered on its individual merits. There are no blanket decisions applied to individual applicants because of their nationality, ethnicity or citizenship.Australia's visitor program aims to facilitate the entry of overseas visitors. While every effort is made to keep formalities to a minimum, there are certain legal requirements that must be met by all applicants for a visitor visa to avoid abuses of the visitor program. Particular abuses, which have been of concern to successive Governments for the past 20 years, are visitors working unlawfully or overstaying their authorised period of stay. The legal criteria for the grant of a visitor visa require, amongst other things, that the applicant has adequate funds for their support for the period of the visit and that they intend a genuine visit to Australia. These criteria are the same regardless of the nationality of the applicant, or the part of the world where the application is lodged.2510(Question No. 1095)10952510O'Brien, Sen KerrySenator O'Brien8O6TASALP00 asked the Minister representing the Minister for Primary Industries and Energy, upon notice, on 12 March 1997:With reference to a grant under the National Landcare Program in the name of the Boorowa Community Landcare Group for a demonstration site on the property of Mr David Marsh:(1) Did the application for the grant include a commitment to the provision of fencing of wood lots.(2) Was funding for the provision of fencing included in the grant for the project; if so, what was the level of funding provided for that purpose.(3) Did the planned erection of the fencing not proceed because it was considered to be not economically viable; if so; was the funding provided for that purpose returned to the Department; if not, why not.(4) (a) What action did the department take to recover the funds; and (b) from whom.2510Parer, Sen WarwickSenator ParerKI4QLDLPResources and Energy10—The Minister for Primary Industries and Energy has provided the following answers to the honourable senator's questions:(1) The Boorowa Community Landcare Group (BCLG) applied for and received a National Landcare Program (NLP) grant of $19,780 in 1992-93. The grant application stated that the BCLG would use electric fencing around tree lots for grazing management until trees are above stock damage level.(2) The grant application sought NLP funding of $2,000 for fencing materials and this level of funding was provided as part of the grant.(3) The final project report, submitted to the Department of Primary Industries and Energy by BCLG, shows that fencing occurred as part of the project. Financial statements attached to this report show that the BCLG spent $2,000 on fencing.(4) (a) Nil. (b) Not applicable.I wish to advise the honourable Senator that the Commonwealth Ombudsman has thoroughly investigated the administration of the above grant and a report was published in November 1996. In that report, the Ombudsman made no specific recommendation that the Department recover funds from either the BCLG or its members in respect of the grant. A copy of this report can be provided to the honourable Senator if required.