1998-07-063817SENATE490501998-07-06The PRESIDENT(Senator the Hon. Margaret Reid) took the chair at 12.30 p.m., and read prayers.Bills4905Messages received from the House of Representatives agreeing to the amendments made by the Senate to the following bills: Crimes Amendment (Forensic Procedures) Bill 1997 Aviation Legislation Amendment Bill (No. 2) 1997 Bills4905r4554905Message received from House of Representatives returning the Native Title Amendment Bill 1997 [No. 2], and notifying the Senate that the House has agreed to certain amendments made by the Senate in the bill, disagreed to certain other amendments made by the Senate in the bill and made amendments to the bill, and requesting the reconsideration of the bill in respect of the Senate amendments disagreed to and the concurrence of the Senate to the amendments made by the House.House of Representatives message—Schedule of the amendments to which the House of Representatives has agreed.ValidationGovt (1)Schedule 1, item 39, page 136 (lines 32 to 34), omit paragraph (8)(b), substitute: (b) the grant or vesting of any thing expressly for the benefit of, or to or in a person to hold on trust expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders; orGovt (2)Schedule 1, item 39, page 137 (lines 16 to 18), omit subparagraph (iii), substitute: (iii) a lease granted expressly for the benefit of, or to a person to hold on trust expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders; orConfirmationGovt (4)Schedule 1, item 9, page 19 (after line 21), at the end of Division 2B, add:23JA Attribution of certain acts If: (a) a previous exclusive possession act or a previous non-exclusive possession act took place before the establishment of a particular State, the Jervis Bay Territory, the Australian Capital Territory or the Northern Territory; and (b) the act affected land or waters that, when this section commences, form part of the State or Territory; then, for the purposes of this Division, the act is taken to be attributable to: (c) the State; or (d) if the Territory is the Jervis Bay Territory—the Commonwealth; or (e) if the Territory is the Australian Capital Territory or the Northern Territory—that Territory. Note: The meaning given to the expression attributable by section 239 will apply for the purposes of this Division to all other previous exclusive and non-exclusive possession acts.Govt (5)Schedule 1, item 12A, page 123 (lines 3 and 4), omit subparagraph (1)(b)(ii), substitute: (ii) the area is held expressly for the benefit of, or is held on trust, or reserved, expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders; andGovt (6)Schedule 1, item 12A, page 123 (line 13), omit "creation of the trust", substitute "doing of the thing that resulted in the holding".Govt (7)Schedule 1, item 12A, page 123 (line 16), omit "on trust". Govt (8)Schedule 1, item 12A, page 124 (line 13), omit "declaration", substitute "dedication".Govt (10)Schedule 1, item 49, page 141 (after line 3), at the end of section 249C, add:Regulations to cover exclusive possession interests only (3) Before the Governor-General makes a regulation for the purposes of paragraph (1)(b) declaring a particular interest to be a Scheduled interest, the Minister must be satisfied that the interest confers a right of exclusive possession that extinguishes all native title rights and interests over the land or waters concerned.Opp (N6)Schedule 1, item 12A, page 123 (line 17), after "freehold estate", insert "for the provision of services (such as health and welfare services)".Opp (N7)Schedule 1, item 12A, page 125 (line 14), after "lease is", insert "bona fide".Opp (N8)Schedule 1, item 12A, page 125 (line 14), after "term is", insert "bona fide".Indigenous land use agreementsGovt (11)Schedule 1, item 9, page 20 (line 10), at the end of subsection (3), add "A future act (other than an intermediate period act) that has already been done invalidly may also be validated as a result of such agreements.".Govt (13)Schedule 1, item 9, page 22 (after line 31), after paragraph (e), insert: (ea) compensation for any past act, intermediate period act or future act;Govt (15)Schedule 1, item 9, page 26 (after line 16), after paragraph (e), insert: (ea) compensation for any past act, intermediate period act or future act;Govt (16)Schedule 1, item 9, page 27 (line 20), at the end of subsection (2), add: ; and (c) if, for any part (the non-claimed/ determined part ) of the land or waters in the area, there is neither a registered native title claimant nor a registered native title body corporate—one or more of the following: (i) any person who claims to hold native title in relation to land or waters in the non-claimed/determined part; (ii) any representative Aboriginal/Torres Strait Islander body for the non-claimed/determined part.Govt (18)Schedule 1, item 9, page 35 (after line 23), after paragraph (e), insert: (ea) compensation for any past act, intermediate period act or future act;Govt (20)Schedule 1, item 30, page 129 (line 16), after "24EB(1)", insert "or 24EBA(1) or (4)".Govt (21)Schedule 1, item 30, page 130 (line 3), omit "The", substitute "Subject to subsection (1A), the".Govt (22)Schedule 1, item 30, page 130 (after line 34), after subsection (1), insert:Federal Court order not to remove details (1A) If: (a) the Registrar is or will be required to remove the details of an agreement from the Register in a case covered by paragraph (1)(a) or (b); and (b) the persons who, under the approved determination of native title mentioned in that paragraph, hold native title apply to the Federal Court for an order under this subsection; and (c) the Federal Court is satisfied that those persons accept the terms of the agreement, in accordance with the process by which they would authorise the making of such an agreement; the Federal Court may order the Registrar not to remove the details of the agreement from the Register. Note: The heading to subsection 199C(2) (page 131, line 1) is altered by adding at the end "to remove details ".Govt (23)Schedule 1, item 39, page 135 (line 5), after "Part 2", insert "(disregarding section 24EBA)". Primary productionGovt (24)Schedule 1, item 9, page 50 (line 13), after "is", insert "required or permitted to be".Govt (25)Schedule 1, item 9, page 55 (lines 19 to 22), omit subparagraphs (e)(ii) to (iv), substitute: (ii) to extract, obtain or remove sand, gravel, rocks, soil or other resources (except so far as doing so constitutes mining);RenewalsGovt (27)Schedule 1, item 9, page 59 (line 18), omit "and", substitute "or".Govt (28)Schedule 1, item 9, page 59 (after line 18), at the end of paragraph (c), add: (iv) if the original lease etc. was a non-exclusive pastoral lease covering an area greater than 5,000 hectares and the majority of the area covered was not required or permitted to be used for purposes other than pastoral purposes—have the effect that the majority of the area covered by the renewed, re-granted, re-made or extended lease is required or permitted to be used for purposes other than pastoral purposes; andReservationsGovt (30)Schedule 1, item 9, page 64 (after line 25), at the end of section 24JB, add:Notification of national, State and Territory park management plans (7) If the act consists of the creation of a plan for the management of a national, State or Territory park intended to preserve the natural environment of an area, then, before the act is done, the person proposing to do the act must: (a) notify, in the way determined in writing by the Commonwealth Minister, any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the land or waters covered by the plan that the act is to be done in relation to the land or waters; and (b) give them an opportunity to comment on the act. Note: The heading to subsection 24JB(6) (page 64, line 13) is replaced by the heading "Notification of public works ".Freehold test and offshoreGovt (32)Schedule 1, item 9, page 71 (lines 13 to 15), omit paragraph (c), substitute: (c) the compulsory acquisition extinguishes the whole or the part of the native title rights and interests; andGovt (33)Schedule 1, item 9, page 71 (after line 30), after the note, insert: Note 2: This subsection only deals with the case where native title rights and interests are compulsorily acquired. It is also possible for native title rights and interests to be acquired voluntarily by means of an indigenous land use agreement or an agreement covered by subsection (2A). In such cases, non-native title rights and interests could be acquired either compulsorily or by some other means (e.g. voluntarily).Govt (34)Schedule 1, item 9, page 71 (after line 30), before subsection (3), insert:Extinguishment of native title by surrender in course of right to negotiate process (2A) If: (a) notice of a proposed compulsory acquisition of native title rights and interests is given in accordance with section 29 or with an equivalent alternative provision applicable under section 43 or 43A; and (b) an agreement arose out of negotiations in relation to the proposed compulsory acquisition of the native title rights and interests; and (c) the agreement includes a statement to the effect that an act consisting of the surrender of the whole or part of the native title rights and interests is intended to extinguish the whole or the part of the native title rights and interests; then: (d) the surrender extinguishes the whole or the part of the native title rights and interests; and (e) no native title holder who is entitled to any benefit provided under the agreement is entitled to any compensation for the act under this Act, other than compensation provided for in the agreement; and (f) any other native title holder is entitled to compensation for the act in accordance with Division 5.Govt (35)Schedule 1, item 9, page 71 (lines 32 and 33), omit "other future act to which this Subdivision applies", substitute "future act to which this Subdivision applies that is not covered by subsection (2) or (2A)".Govt (37)Schedule 1, item 9, page 75 (lines 1 and 2), omit "nothing in this Act prevents the acquisition from extinguishing", substitute "the compulsory acquisition extinguishes".Right to negotiateGovt (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".Govt (39)Schedule 1, item 9, page 81 (line 5), omit "identification and protection", substitute "protection and avoidance".Govt (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. Govt (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; andGovt (42)Schedule 1, item 9, page 93 (line 2), after "Notice", insert "to the public under subsection (3)".Govt (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.Govt (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.Opp (129)/Dems-GWA (119)Schedule 1, item 9, page 90 (line 25), omit "34A,".Opp (135)/Dems-GWA (125)Schedule 1, item 9, page 97 (line 18), omit "34A,".Opp (137)/Dems-GWA (127)Schedule 1, item 9, page 97 (line 20) to page 99 (line 10), omit section 34A.Opp (139)/Dems-GWA (129)Schedule 1, item 9, page 99 (lines 18 and 19), omit paragraph (c).Opp (140)/Dems-GWA (130)Schedule 1, item 9, page 99 (line 22), omit "34A,".Opp (144)Schedule 1, item 9, page 100 (lines 30 and 31), omit paragraph (c).Opp (149)Schedule 1, item 9, page 101 (line 22), omit "34A or ".Opp (150)Schedule 1, item 9, page 101 (line 23), omit "34A or".Opp (159)Schedule 1, item 9, page 103 (line 20), omit "34A and ".Opp (160)Schedule 1, item 9, page 103 (line 24), omit "34A or".Opp (166)Schedule 1, item 9, page 105 (line 20), omit "34A or".Opp (174)Schedule 1, item 9, page 109 (line 10), omit "34A or".Opp (176)Schedule 1, item 9, page 112 (lines 35 and 36), omit "34A or 36A, or both,", substitute "36A".Opp (354)/Dems-GWA (329)Schedule 5, item 11, page 351 (line 32), omit "34A,". CompensationGovt (52)Schedule 1, page 126 (after line 2), after item 13, insert:13A Subsection 50(1)Omit "section", substitute "Division". Note: The heading to subsection 50(1) is altered by omitting "Section " and substituting "Division ".Govt (53)Schedule 1, page 126 (before line 3), before item 14, insert:13B At the end of subsection 50(1)Add: Note: Such compensation is generally for acts that are validated or valid. Native title holders would ordinarily be entitled to compensation or damages for invalid acts under the general law. The Federal Court may be able to award such compensation or damages in proceedings in relation to the invalidity of the act: see subsection 213(2).ApplicationsGovt (54)Schedule 2, item 19, page 151 (table, column 3 of first item), omit paragraph (1) and the notes, substitute: (1) A person or persons authorised by all the persons (the native title claim group ) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group; or Note 1: The person or persons will be the applicant: see subsection (2) of this section. Note 2: Section 251B states what it means for a person or persons to be authorised by all the persons in the native title claim group.Govt (55)Schedule 2, item 19, page 152 (table, column 3 of third item), omit paragraph (2) and the notes, substitute: (2) A person or persons authorised by all the persons (the compensation claim group ) who claim to be entitled to the compensation, provided the person or persons are also included in the compensation claim group. Note 1: The person or persons will be the applicant: see subsection (2) of this section. Note 2: Section 251B states what it means for a person or persons to be authorised by all the persons in the compensation claim group.Govt (56)Schedule 2, item 19, page 154 (lines 19 to 25), omit subsection (4), substitute:Section not to apply in section 47, 47A or 47B cases (4) However, subsection (2) or (3) does not apply to an application if: (a) the only previous exclusive possession act or previous non-exclusive possession act concerned was one whose extinguishment of native title rights and interests would be required by section 47, 47A or 47B to be disregarded were the application to be made; and (b) the application states that section 47, 47A or 47B, as the case may be, applies to it.Govt (57)Schedule 2, item 19, page 155 (lines 8 to 14), omit subparagraphs (iv) and (v) and the note, substitute: (iv) that the applicant is authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it; and Note: Section 251B states what it means for the applicant to be authorised by all the persons in the native title claim group. (v) stating the basis on which the applicant is authorised as mentioned in subparagraph (iv); andGovt (58)Schedule 2, item 19, page 157 (lines 9 to 15), omit subparagraphs (iii) and (iv) and the note, substitute: (iii) that the applicant is authorised by all the persons in the compensation claim group to make the application and to deal with matters arising in relation to it; and Note: Section 251B states what it means for the applicant to be authorised by all the persons in the compensation claim group. (iv) stating the basis on which the applicant is authorised as mentioned in subparagraph (iii); andGovt (59)Schedule 2, item 19, page 158 (before line 6), before subsection (1), insert:Application may be amended to reduce land or waters covered (1A) An application may at any time be amended to reduce the area of land or waters covered by the application. (This subsection does not, by implication, limit the amendment of applications in any other way.) Note: If such an amendment is made, the Court may make an appropriate costs order under section 85A.Govt (60)Schedule 2, item 19, page 164 (after line 16), after section 66A, insert:66B Replacing the applicantApplication to replace applicant in claimant application (1) One or more members of the native title claim group (the claim group ) in relation to a claimant application, or of the compensation claim group (also the claim group ) in relation to a compensation application, may apply to the Federal Court for an order that the member, or the members jointly, replace the current applicant for the application on the grounds that: (a) either: (i) the current applicant is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it; or (ii) the current applicant has exceeded the authority given to him or her by the claim group to make the application and to deal with matters arising in relation to it; and (b) the member or members are authorised by the claim group to make the appli cation and to deal with matters arising in relation to it.Court order (2) The Court may make the order if it is satisfied that the grounds are established.Registrar of Federal Court to notify Native Title Registrar (3) If the Court makes the order, the Registrar of the Federal Court must, as soon as practicable, notify the Native Title Registrar of the name and address for service of the person who is, or persons who are, the new applicant.Register to be updated (4) If the claim contained in the application is on the Register of Native Title Claims, the Registrar must amend the Register to reflect the order.Claims process and the sunset clauseGovt (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".Govt (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.Govt (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.Govt (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.Dems-GWA (190)/Opp (223)Schedule 2, item 3, page 147 (lines 11 to 15), omit the item.Dems-GWA (192)Schedule 2, item 9, page 148 (lines 7 to 20), omit the item.Registration testGovt (66)Schedule 1, item 9, page 94 (after line 18), at the end of section 30, add:Registered native title rights and interests (3) For the purposes of this Subdivision, the registered native title rights and interests of a native title party are: (a) if the native title party is such because an entry has been made on the National Native Title Register—the native title rights and interests described in that entry; or (b) if the native title party is such because an entry has been made on the Register of Native Title Claims—the native title rights and interests described in that entry. Note: The heading to section 30, page 93 (line 21) is altered by adding at the end "etc. ". Govt (67)Schedule 1, item 9, page 95 (line 10), omit "determined or claimed", substitute "registered".Govt (68)Schedule 1, item 9, page 106 (line 11), omit "determined or claimed", substitute "registered".Govt (69)Schedule 1, item 9, page 106 (lines 27 and 28), omit "determined or claimed", substitute "registered".Govt (71)Schedule 2, item 63, page 203 (line 2), omit "3 months", substitute "4 months".Govt (72)Schedule 2, item 63, page 203 (line 8), omit "accompanying documents", substitute "other documents provided by the applicant".Govt (74)Schedule 2, item 67, page 209 (line 21), after "are", insert "and a description of the nature and extent of the native title rights and interests concerned".Govt (75)Schedule 5, item 11, page 347 (line 30), omit "3 months", substitute "4 months".Govt (76)Schedule 5, item 11, page 349 (line 4), omit "3 months", substitute "4 months".Representative bodiesGovt (77A)Schedule 3, item 32, page 278 (lines 17 to 30), omit the item.Govt (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".Govt (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.Govt (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.MiscellaneousGovt (82)Schedule 1, item 10, page 122 (line 3), after paragraph (b), insert: and (ba) an activity is done in accordance with the lease, licence, permit or authority and any such conditions;Govt (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".Govt (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".Govt (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".Govt (86)Schedule 1, item 10, page 122 (lines 15 to 17), omit the note, 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.Govt (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".Govt (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).Govt (90)Schedule 2, item 37, page 193 (line 29) to page 194 (line 1), omit the item.Govt (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 application If 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.Govt (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".Govt (93)Schedule 2, page 210 (after 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)),".Govt (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; andGovt (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; andGovt (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.Govt (97)Schedule 2, items 72 to 74, page 213 (line 27) to page 214 (line 18), omit the items.Govt (98)Schedule 2, Part 3, page 224 (lines 2 to 7), omit the Part.Opp (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 en titlement 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.Schedule of the amendments to which the House of Representatives has disagreed.Racial Discrimination ActOpp (RN42) Schedule 1, item 3, page 5 (lines 4 and 5), omit the item, substitute:3 Section 7Repeal the section, substitute:7 Relationship with Racial Discrimination Act (1) This Act is intended to be read and construed subject to the provisions of the Racial Discrimination Act 1975. (2) Subsection (1) does not affect the validation of past acts or intermediate period acts by or in accordance with this Act. Note: The provisions of the Racial Discrimination Act 1975 apply to the performance of functions and exercise of powers conferred by or authorised by this Act. To construe this Act, and thereby to determine its operation, ambiguous terms should be construed consistently with the Racial Discrimination Act 1975 if that construction would remove ambiguity.ConfirmationGovt (3)Schedule 1, item 9, page 14 (lines 23 to 28), omit subsection (9), substitute:Exclusion of acts benefiting Aboriginal peoples or Torres Strait Islanders (9) An act is not a previous exclusive possession act if it is: (a) the grant or vesting of any thing that is made or done by or under legislation that makes provision for the grant or vesting of such things only to, in or for the benefit of, Aboriginal peoples or Torres Strait Islanders; or (b) the grant or vesting of any thing expressly for the benefit of, or to or in a person to hold on trust expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders; or (c) the grant or vesting of any thing over particular land or waters, if at the time a thing covered by paragraph (a) or (b) is in effect in relation to the land or waters. Note: The expression Aboriginal peoples is defined in section 253.Exclusion of national parks etc. (9A) An act is not a previous exclusive possession act if the grant or vesting concerned involves the establishment of an area, such as a national, State or Territory park, for the purpose of preserving the natural environment of the area.Effect of exclusions (9B) To avoid doubt, the fact that an act is, because of any of the previous subsections, not a previous exclusive possession act does not imply that the act is not valid.Govt (9)Schedule 1, item 49, page 140 (line 24), omit paragraph 249C(1)(a), substitute: (a) anything set out in Schedule 1, other than: (i) a mining lease; or (ii) an interest created by or under legislation that creates interests only for the benefit of Aboriginal peoples or Torres Strait Islanders; or (iii) an interest created expressly for the benefit of, or held on trust expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders; or (iv) any other interest created in relation to particular land or waters, if at the time an interest covered by subparagraph (ii) or (iii) is in effect in relation to the land or waters; orOpp (N5)Schedule 1, item 9, page 14 (after line 28), after subsection (9), insert: (9B) An act is not a previous exclusive possession act if it is an act done pursuant to a law of the Commonwealth, a State or Territory which provides that it does not extinguish native title rights or interests. Opp (N10)Schedule 1, item 49, page 140 (line 27), at the end of subsection (1), add: ; or (c) but not any interest otherwise excluded from the definition of a previous exclusive possession act.Opp (N3)Schedule 1, item 9, page 14 (after line 28), after subsection (9), insert: (9A) An act is not a previous exclusive possession act if it is: (a) the grant of an interest in land from the Crown, or a statutory authority, to the Crown in any capacity, or a statutory authority; or (b) the creation or vesting of an interest in land in the Crown in any capacity, or a statutory authority; unless, or until, the land is put to residential, agricultural or commercial uses, which would otherwise extinguish native title rights and interests.Opp (RN2)Schedule 1, item 9, page 14 (after line 31), at the end of section 23B, add: (11) Notwithstanding anything else in this Act, native title rights and interests, extinguishment of which is confirmed by this Division, may, if not otherwise extinguished, lost or abandoned, revive upon the cessation of the interest (including any valid renewal or extension of the interest) created by the previous exclusive possession act.Indigenous land use agreementsGovt (19)Schedule 1, item 9, page 45 (after line 5), after section 24EB, insert:24EBA Validating previous future acts covered by indigenous land use agreementsCoverage of section (1) The consequences set out in this section apply if: (a) details are on the Register of Indigenous Land Use Agreements of an agreement that includes a statement to the effect that the parties agree to: (i) the validating of a particular future act (other than an intermediate pe riod act), or future acts (other than intermediate period acts) included in classes, that have already been done invalidly; or (ii) the validating, subject to conditions, of a particular future act (other than an intermediate period act), or of future acts (other than intermediate period acts) included in classes, that have already been done invalidly; and Note: Intermediate period acts are or can be validated only under Division 2A. (b) whichever of the Commonwealth, the State or the Territory to which the future act or class of future acts is attributable is a party to the agreement; and (c) where, whether under the agreement or otherwise, a person other than the Crown in right of the Commonwealth, a State or a Territory is or may become liable to pay compensation in relation to the future act or class of future acts—that person is a party to the agreement.Commonwealth acts valid (2) If the act or class of acts is attributable to the Commonwealth, the act or class of acts is valid, and is taken always to have been valid.State or Territory laws may validate their acts (3) If the act or class of acts is attributable to a State or Territory, a law of the State or the Territory may provide that the act or class of acts is valid, and is taken always to have been valid. The law may do so by applying to all acts, to classes of acts, or to particular acts, in respect of which the requirements of subsection (1) are or become satisfied.Non-extinguishment principle (4) If subsection (2) applies or a law makes provision in accordance with subsection (3), the non-extinguishment principle applies to the act or class of acts unless: (a) the act or class of acts is the surrender of native title; and (b) the agreement includes a statement to the effect that the surrender is intended to have extinguished the native title rights and interests. Compensation consequences (5) If subsection (2) applies or a law makes provision in accordance with subsection (3), the consequences set out in subsection 24EB(4), (5) or (6), and the consequences set out in subsection 24EB(7), apply to the act or to each of the acts in the class.Govt (12)Schedule 1, item 9, page 22 (after line 21), after paragraph (a), insert: (aa) particular future acts (other than intermediate period acts), or future acts (other than intermediate period acts) included in classes, that have already been done; Note: Intermediate period acts are or can be validated only under Division 2A.Govt (14)Schedule 1, item 9, page 26 (after line 6), after paragraph (a), insert: (aa) particular future acts (other than intermediate period acts), or future acts (other than intermediate period acts) included in classes, that have already been done; Note: Intermediate period acts are or can be validated only under Division 2A.Govt (17)Schedule 1, item 9, page 35 (after line 14), after paragraph (a), insert: (aa) particular future acts (other than intermediate period acts), or future acts (other than intermediate period acts) included in classes, that have already been done; Note: Intermediate period acts are or can be validated only under Division 2A.Dems-GWA (163)Schedule 1, item 30, page 131 (after line 10), at the end of section 199C, add: (4) The Federal Court must not make an order under subsection (2) unless it is satisfied that, if the party referred to in subsection (3) is one of the native title holders, authority to enter into the agreement would not have been given but for the fraud, undue influence or duress. (5) If the Federal Court makes an order under subsection (2), the Court may also grant further or ancillary relief against any person involved in the fraud, undue influence or duress for the purpose of compensating any party to the agreement who has suffered loss as a result of the order to remove details of the agreement from the Register.Opp (N46)Schedule 1, page 6 (after line 10), after item 8, insert:8A At the end of section 15Add: (3) Notwithstanding subsection (1), if an indigenous land use agreement to which a State or Territory is a party is registered and makes provision in relation to the consequences of a past act validated under this Division, the provision has effect from the time at which the agreement is registered.Opp (N47)Schedule 1, item 9, page 8 (after line 3), at the end of section 22B, add: (2) Notwithstanding subsection (1), if an indigenous land use agreement to which a State or Territory is a party is registered and makes provision in relation to the consequences of an intermediate period act validated under this Division, the provision has effect from the time at which the agreement is registered.Opp (N11) [amt to Govt (12) ]Paragraph 24BB(aa), after "other than" (wherever occurring), insert "the validation of".Opp (N12)Schedule 1, item 9, page 22 (after line 31), after paragraph (e), insert: (eb) the consequences of any act with respect to which an agreement can be made (other than the validation of past acts or intermediate period acts);Opp (N13) [amt to Govt (14) ]Paragraph 24CB(aa), after "other than" (wherever occurring), insert "the validation of".Opp (N14)Schedule 1, item 9, page 26 (after line 16), after paragraph (e), insert: (eb) the consequences of any act with respect to which an agreement can be made (other than the validation of past acts or intermediate period acts); Opp (N15) [amt to Govt (17) ]Paragraph 24DB(aa), after "other than" (wherever occurring), insert "the validation of".Opp (N16)Schedule 1, item 9, page 35 (after line 23), after paragraph (e), insert: (eb) the consequences of any act with respect to which an agreement can be made (other than the validation of past acts or intermediate period acts);Dems-GWA (20)Schedule 1, item 9, page 22 (lines 19 to 21), omit "future" (wherever occurring).Dems-GWA (21)Schedule 1, item 9, page 23 (lines 3 and 4), omit "a future act or class of future act" (wherever occurring), substitute "an act or class of acts".Dems-GWA (22)Schedule 1, item 9, page 23 (line 7), omit "a future act", substitute "an act".Dems-GWA (25)Schedule 1, item 9, page 26 (line 5), omit "future" (wherever occurring).Dems-GWA (26)Schedule 1, item 9, page 26 (lines 23 and 24), omit "a future act or class of future act" (wherever occurring), substitute "an act or class of acts".Dems-GWA (27)Schedule 1, item 9, page 26 (line 27), omit "a future act", substitute "an act".Dems-GWA (23)Schedule 1, item 9, page 23 (after line 30), at the end of section 24BD, add: (4) If no representative body for the area (or a part of the area) is a party to the agreement, the registered native title bodies corporate must consult with such a representative body as to the terms of the agreement before it enters into the agreement.Dems-GWA (24)Schedule 1, item 9, page 25 (after line 24), at the end of section 24BI, add: (2) The Registrar must not register the agreement if a representative body for the area notifies the Registrar, within that period of 1 month, that no representative body was consulted in accordance with subsection 24BD(4).Dems-GWA (28)Schedule 1, item 9, page 28 (after line 11), at the end of section 24CD, add: (7) If no representative body for the area (or a part of the area) is a party to the agreement, the native title group must consult with such a representative body as to the terms of the agreement before it enters into the agreement.Dems-GWA (29)Schedule 1, item 9, page 29 (lines 4 to 22), omit subsection (3), substitute:Certificate or statement to accompany application (3) Also: (a) the application must have been certified by all representative Aboriginal/Torres Strait Islander bodies for the area in performing their functions under section 203BE in relation to the area; and (b) the certificate must include a statement to the effect that the following requirements have been met: (i) all reasonable efforts have been made (including by consulting all representative Aboriginal/Torres Strait Islander bodies for the area) to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified; (ii) each of the persons so identified has had a reasonable opportunity to participate in a decision to authorise the making of the agreement; (iii) there was consultation with a representative body as to the terms of the agreement in accordance with subsection 24CD(7). Note: The word authorise is defined in section 251A.Dems-GWA (30)Schedule 1, item 9, page 30 (line 23), omit "paragraphs 202(8)(a) and (b)", substitute "paragraphs 203BE(5)(a), (b) and (c)".Dems-GWA (31)Schedule 1, item 9, page 31 (line 18), omit "paragraphs 202(8)(a) and (b)", substitute "paragraphs 203BE(5)(a), (b) and (c)". Dems-GWA (32A)Schedule 1, item 9, page 32 (line 23), omit "paragraphs 202(8)(a) and (b)", substitute "paragraphs 203BE(5)(a), (b) and (c)".Primary productionGovt (26)Schedule 1, page 145 (after line 32), after item 57, insert:57A Section 253 (paragraph (c) of the definition of mine )Repeal the paragraph, substitute: (c) quarry; but does not include extract, obtain or remove sand, gravel, rocks or soil from the natural surface of land, or of the bed beneath waters, for a purpose other than: (d) extracting, producing or refining minerals from the sand, gravel, rocks or soil; or (e) processing the sand, gravel, rocks or soil by non-mechanical means.Opp (N19) [amt to Govt (26) ]Schedule 1, item 57A, after "but", insert ", for the purposes of section 24GE,".Harradine (N1)/Opp (N17)Schedule 1, item 9, page 49 (line 26), at the end of subsection (1), add: ; and (e) the future act could lawfully have been done in relation to the lease prior to 23 December 1996 if any native title in relation to the land and waters covered by the lease had not then existed.Harradine (N2)/Opp (N18)Schedule 1, item 9, page 52 (line 16), at the end of subsection (1), add: ; and (d) prior to 23 December 1996, the activity could have been carried out in the area covered by the lease because: (i) the terms of the lease or the legislation governing the lease permitted or required the activity; or (ii) if an act (such as a permit, licence or authority) was required, that act could lawfully have been done in relation to that activity prior to 23 December 1996. Harradine (R9)Schedule 1, item 9, page 53 (line 31), at the end of subsection (1), add: ; and (f) the future act takes place on land which has not been the subject of an approved determination of native title in respect of which the native title rights and interests include a right to exclusive possession of the land.RenewalsGovt (29)Schedule 1, item 9, page 60 (line 17), at the end of paragraph (c), add "(other than a mining lease)".Opp (RN27)Schedule 1, item 9, page 87 (line 25) to page 88 (line 5), omit subsection (1), substitute: (1) This Subdivision does not apply to an act consisting of the creation of a right to mine if: (a) the creation of the right is done by: (i) the renewal; or (ii) the extension of the term; of an earlier right to mine; and (b) the earlier right: (i) was created on or before 23 December 1996 by an act that is valid (including because of Division 2 or 2A); or (ii) was created by an act to which this Subdivision applied that was not invalid to any extent under section 28; and (c) the area to which the earlier right relates is not extended; and (d) the term of the renewal or extension is not longer than the term of the earlier right; and (e) the renewal or extension: (i) does not confer on the grantee rights to do things which will have a greater impact on the land or waters concerned than the rights conferred by the earlier right; and (ii) without limiting subparagraph (i), does not confer a right to mine minerals which were not included in the earlier grant. Note: For compensation in relation to acts of this class, see Subdivision I.Opp (N21)Schedule 1, item 9, page 58 (line 28), after "authority", insert ", other than one which permits mining,".Opp (N22)Schedule 1, item 9, page 59 (lines 24 to 26), omit paragraph (e).Opp (RN23)Schedule 1, item 9, page 59 (after line 26), after subsection (1), insert: (1A) A future act is also a permissible lease etc. renewal if: (a) the original lease etc. was the creation of a right to mine; and (b) the future act is a renewal or extension of the original lease etc.; and (c) either: (i) the original lease etc. was granted on or before 23 December 1996; or (ii) the grant of the original lease etc. was a permissible lease etc. renewal or a pre-existing right-based act; and (d) the future act does not: (i) confer a right of exclusive possession over any of the land or waters covered by the original lease etc.; or (ii) otherwise create a larger proprietary interest in the land or waters than was created by the original lease etc.; or (iii) create a proprietary interest over any of the land or waters covered by the original lease etc., where the original lease etc. created only a non-proprietary interest; or (iv) confer on the grantee rights to do things which will have a greater impact on the land or waters concerned than the rights conferred by the earlier right; or (v) confer a right to mine minerals which were not included in the earlier grant; and (e) the area to which the original lease etc. relates is not extended; and (f) the term of the renewal or extension is not longer than the term of the original lease etc.; and (g) if the original lease etc. contains, or is subject to, a reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders—the renewed or extended lease either contains, or is subject to, the same reservation or condition.Harradine (14)Schedule 1, item 9, page 60 (lines 14 to 17), omit paragraphs (4)(b) and (c).Services to the publicOpp (RR101)Schedule 1, item 9, page 67 (after line 27), at the end of section 24KA, add: (9) If there are registered claimants in relation to the land or waters concerned, they have the procedural rights referred to in subsection (7). (10) If there is no registered claimant in relation to the land or waters concerned, the representative body, in addition to any procedural right conferred on it by any other law, has a right to comment on the act before it is done.Opp (93)Schedule 1, item 9, page 65 (line 3), omit "construction", substitute "reconstruction (but not so as to increase significantly the area of land used)". Opp (94)Schedule 1, item 9, page 65 (line 7), omit "construction", substitute "reconstruction (but not so as to increase significantly the area of land used)".Opp (95)/Dems-GWA (87)Schedule 1, item 9, page 65 (lines 13 to 18), omit paragraph (1)(c), substitute: (c) it does not prevent native title holders in relation to land or waters on which the thing is located or to be located from having reasonable access to the land or waters in the vicinity of the thing, except for reasons of health and safety; andDems-GWA (92)/Opp (100)Schedule 1, item 9, page 67 (lines 2 to 12), omit subsection (7), substitute: (7) The native title holders have the same procedural rights as they would have in relation to the act on the assumption that they instead held ordinary title covering any land concerned or covering the land adjoining, or surrounding, any waters concerned.Freehold test and offshoreOpp (RR107)Schedule 1, item 9, page 73 (after line 33), at the end of section 24MD, add: (8) If there are registered claimants in relation to the land or waters concerned, they have the procedural rights referred to in subsection (6). (9) If there is no registered claimant in relation to the land or waters concerned, the representative body, in addition to any procedural right conferred on it by any other law, has a right to comment on the act before it is done.Opp (RR110)Schedule 1, item 9, page 76 (after line 26), at the end of section 24NA, add: (10) If there are registered claimants in relation to the land or waters concerned, they have the procedural rights referred to in subsection (8). (11) If there is no registered claimant in relation to the land or waters concerned, the representative body, in addition to any procedural right conferred on it by any other law, has a right to comment on the act before it is done.Harradine (18)Schedule 1, item 9, page 71 (line 4), omit "(whether compulsorily or otherwise)", substitute "compulsorily".Harradine (21)Schedule 1, item 9, page 74 (line 24), omit "(whether compulsorily or otherwise)", substitute "compulsorily".Right to negotiateGovt (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. Opp (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.Harradine (22)Schedule 1, item 9, page 78 (lines 13 to 15), omit "and" and subsubparagraph (B).Opp (201)/Dems-GWA (170)Schedule 1, item 34, page 133 (lines 11 and 12), omit "or paragraph (i) of the definition of infrastructure facility in section 253".Opp (221)/Dems-GWA (188)Schedule 1, item 57, page 145 (lines 13 to 32), omit the item.Opp (287)/Dems-GWA (258)Schedule 2, item 78, page 216 (table), omit the item relating to infrastructure facility.Opp (117)/Dems-GWA (107)/Harradine (23)Schedule 1, item 9, page 79 (lines 1 and 2), omit paragraph (f).Opp (200)/Dems-GWA (169)Schedule 1, item 34, page 133 (line 11), omit ", 251C(4) or (5)".Opp (218)/Dems-GWA (185)Schedule 1, item 50, page 142 (line 12) to page 144 (line 9), omit sections 251C and 251D.Opp (295)/Dems-GWA (265)Schedule 2, item 78, page 218 (table), omit the item relating to town or city.Opp (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.Opp (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 any thing 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).Opp (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 subparagraphs (6)(c)(i) and (ii).Opp (125)/Dems-GWA (114)Schedule 1, item 9, page 88 (line 13), omit ", (g) or (h)". Opp (126)/Dems-GWA (115)Schedule 1, item 9, page 88 (lines 15 to 19), omit paragraph (c), substitute: (c) the agreement mentioned in paragraph 28(1)(f) provided: (i) an express understanding that there would be no further negotiation before the later act took place; and (ii) that, if the later act were done, certain conditions would be complied with by parties other than native title parties (whether before or after the act was done); andOpp (127)/Dems-GWA (116)Schedule 1, item 9, page 88 (after line 22), at the end of section 26D, add:Exception (3) However, the exclusion provided by this section does not apply if the agreement with respect to the earlier act provides for or permits the application of this Subdivision to the later act.Opp (134)/Dems-GWA (124)Schedule 1, item 9, page 97 (after line 14), at the end of section 33, add: (3) If the negotiations are with respect to a right the creation of which may constitute an earlier act for the purposes of section 26D, the negotiations may include the possibility that: (a) any agreement which results will provide for further negotiations in respect of an act that constitutes a later act for the purposes of that section; or (b) this Subdivision will apply to the later act. (4) Proceedings may be taken in the Federal Court in relation to an agreement reached under section 31 pursuant to negotiations about matters referred to in subsection (3): (a) for specific performance of the agreement; or (b) for a declaration that the conditions of the agreement agreed to by non-native title parties have not been complied with; or (c) for an injunction or prohibition restraining those parties from continuing to do things under the act or the later act; or (d) for damages for the doing of the things or for a failure to comply with the conditions, or both. Opp (170)/Dems-GWA (136)Schedule 1, item 9, page 106 (after line 5), at the end of section 38, add: (3) If the act is with respect to a right the creation of which may constitute an earlier act for the purposes of section 26D, the determination may include a condition that: (a) will provide for further negotiations in respect of an act that constitutes a later act for the purposes of that section; or (b) will provide that this Subdivision will apply to the later act. (4) Proceedings may be taken in a court of a State or Territory in relation to a determination under this section: (a) for specific performance of a condition of the determination; or (b) for a declaration that the conditions of the determination have not been complied with by non-native title parties; or (c) for an injunction or prohibition restraining those parties from continuing to do things under the act or the later act; or (d) for damages for the doing of the things or for a failure to comply with the conditions, or both.Opp (130)/Dems-GWA (120)Schedule 1, item 9, page 91 (after line 7), at the end of section 28, add: (3) A person wishing to lodge a native title determination application under section 61 may apply to the Federal Court for an order prohibiting the doing or continuation of any act to which this Subdivision applies on the basis that section 29 has not been complied with.Opp (N28) [amt to Govt (44) ]Schedule 1, item 9, subsection 35(3), omit "34A,".Opp (152)Schedule 1, item 9, page 101 (lines 28 to 30), omit paragraph 36B(2)(a).Opp (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.Opp (143)Schedule 1, item 9, page 100 (line 23), omit "Relevant ", substitute "Commonwealth ".Opp (145)Schedule 1, item 9, page 101 (line 1), omit "relevant", substitute "Commonwealth".Opp (146)Schedule 1, item 9, page 101 (line 4), omit "relevant", substitute "Commonwealth".Opp (147)Schedule 1, item 9, page 101 (line 5), omit "relevant", substitute "Commonwealth".Opp (148)Schedule 1, item 9, page 101 (lines 9 to 21), omit paragraphs (2)(b) and (c) and subsection (3), substitute: (b) it is in the national interest to make the determination at that time.Opp (151)Schedule 1, item 9, page 101 (line 24), omit "relevant", substitute "Commonwealth".Opp (153)Schedule 1, item 9, page 102 (line 1), omit "relevant", substitute "Commonwealth".Opp (154)Schedule 1, item 9, page 102 (line 8), omit "relevant", substitute "Commonwealth".Opp (155)Schedule 1, item 9, page 102 (line 28), omit "relevant", substitute "Commonwealth".Opp (156)Schedule 1, item 9, page 103 (line 2), omit "relevant", substitute "Commonwealth".Opp (157)Schedule 1, item 9, page 103 (line 4), omit "relevant", substitute "Commonwealth".Opp (158)Schedule 1, item 9, page 103 (line 6), omit "relevant", substitute "Commonwealth".Opp (161)Schedule 1, item 9, page 103 (line 28), omit "relevant", substitute "Commonwealth".Opp (162)Schedule 1, item 9, page 104 (line 7), omit "relevant", substitute "Commonwealth".Opp (163)Schedule 1, item 9, page 104 (line 9), omit "relevant", substitute "Commonwealth".Opp (164)Schedule 1, item 9, page 104 (line 27), omit "relevant", substitute "Commonwealth".Opp (165)Schedule 1, item 9, page 105 (lines 4 to 14), omit subsection (7), substitute: (7) The Commonwealth Minister must, as soon as practicable after making a determination, and in any case within 15 sitting days, cause a copy of the determination, together with reasons for the determination, to be laid before each House of the Parliament.Opp (167)/Dems-GWA (135)Schedule 1, item 9, page 105 (after line 27), after subsection (1), insert: (1A) A determination may, with the agreement of the parties, provide that particular matters that: (a) are not reasonably capable of being determined at the time the determination is made; and (b) are not directly relevant to the doing of the act; are to be the subject of further negotiations or determined in a specified manner. (1B) If the matter is to be determined by arbitration otherwise than by the arbitral body, the parties must agree to the manner of determination or, in the absence of agreement, the matter must be determined by the arbitral body at an appropriate time. Example 1: A mining lease may be granted subject to quantification of compensation etc. at a later time by an independent arbitrator. Example 2: A mining lease may be granted subject to site clearance procedures to be determined by a third person.Opp (172)/Dems-GWA (138)Schedule 1, item 9, page 106 (lines 32 and 33), omit paragraph (d).Dems-GWA (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;Opp (173)Schedule 1, item 9, page 108 (after line 4), at the end of section 40, add: (2) Subsection (1) does not apply to an indigenous land use agreement, or an agreement in writing referred to in paragraph 31(1)(b), that identifies the agreement or determination affected.Opp (178)/Dems-GWA (146)/Harradine (31)Schedule 1, item 9, page 113 (line 16) to page 117 (line 14), omit sections 43A and 43B.Opp (198)/Dems-GWA (167)/Harradine (52)Schedule 1, item 34, page 133 (line 10), omit "or 43A(1)(b)". Opp (203)/Dems-GWA (172)/Harradine (53)Schedule 1, item 34, page 133 (line 16), omit ", 43(3) or 43A(6)", substitute "or 43(3)".Opp (355)/Dems-GWA (330)/Harradine (54)Schedule 5, item 11, page 352 (lines 7 and 8), omit "or 43A(8)".Opp (R209)Schedule 1, item 42, page 138 (lines 16 to 18), omit the item, substitute:42 Paragraph 237(a)Omit "does not directly interfere with the community life", substitute "does not interfere directly with the actual functioning of the way of life of the community".Opp (210)Schedule 1, items 43 and 44, page 138 (lines 19 to 22), omit the items, substitute:43 At the end of section 237Add: (2) If the act creates rights in persons other than those who are or may be native title holders in relation to the land or waters concerned, the following must be taken into account: (a) the terms and conditions contained in any relevant grant, licence, permission or authority; (b) the legislation governing their creation; (c) the possible activities that would be authorised by their creation. (3) In deciding whether an act involves a major disturbance as mentioned in paragraph (1)(c), the beliefs and concerns of the native title claim group must be considered.Dems-GWA (268)Schedule 2, item 94, page 221 (lines 13 to 16), omit the item.Dems-GWA (270)Schedule 2, item 101, page 222 (lines 24 to 27), omit the item.Opp (118)/Dems-GWA (108)/Harradine (N3)Schedule 1, item 9, page 79 (line 3), omit "sections 43 and 43A", substitute "section 43".Statutory access rightsOpp (N30)Schedule 1, item 9, page 118 (after line 17), after subsection (3), insert: (3A) For the purposes of paragraph (3)(a), physical access to land is deemed to have been regular up to 23 December 1996 if the person, being a member of the native title claim group, had not had regular physical access to the land prior to 23 December 1996 by reason of an act of government or by reason of the person having been denied physical access to the land by the lessee or a person acting on behalf of the lessee or any other person.Opp (183)/Dems-GWA (151)Schedule 1, item 9, page 120 (lines 1 to 10), omit section 44C.CompensationGovt (51)Schedule 2, item 102, page 223 (after line 9), after paragraph (a), insert: (aa) to hear and determine applications under subsection 50(2) of that Act for determinations of compensation, where the amount of the compensation to which the applicant claims to be entitled is less than: (i) $100,000; or (ii) such other amount as is prescribed instead for the purposes of this paragraph;Opp (RN32)Schedule 2, item 102, page 223 (after line 10), after subsection 18AB(2A), insert:Compensation (2B) Where a compensation claim is referred to a Judicial Registrar: (a) the Court may give such directions as it considers appropriate, and for the purpose of ensuring that, so far as is reasonably practicable: (i) the claim is determined as expeditiously and cheaply as possible and without unnecessary formality; and (ii) the likely cost to the claimant of maintaining a reasonable claim is not disproportionate to the benefit claimed; and (b) the directions which the Court may give may include, but are not limited to, orders about: (i) the principles and procedures to be adapted to the circumstances of the case; and (ii) providing for referral to mediation; and (iii) ensuring that the issues in dispute are identified as soon as possible and that the procedures required and evidence to be called by any party are limited to what is necessary to resolve such issues; and (iv) limiting the liability of the claimant to an adverse costs order; and (v) directing that the claimant's costs, or any part thereof, be paid by another party in any event or in particular circumstances.Opp (R188)Schedule 1, page 126 (after line 2), after item 13, insert:13C Subsection 51(1)Omit "Subject to subsection (3), the", substitute "The".Opp (N31)Schedule 1, page 126 (after line 2), after item 13, insert:13D After subsection 51(1)Insert: (1A) To avoid doubt, the entitlement to compensation referred to in subsection (1) arises whether the loss, diminution, impairment or other effect of the act on native title rights and interests occurs as a result of a valid act or an invalid act.Claims process and the sunset clauseGovt (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. Dems-GWA (333)Schedule 5, items 18 and 19, page 355 (lines 14 to 21), omit the items.Registration testGovt (70)Schedule 2, page 200 (after line 9), after item 60, insert:60A After paragraph 186(1)(f)Insert: ; (g) a description of the native title rights and interests in the claim that: (i) the Registrar in applying subsection 190B(6); or (ii) a recognised State/Territory body in applying provisions equivalent to that subsection; considered, prima facie, could be established.Opp (RN34) [amt to Govt (70) ]At the end of paragraph 186(1)(g), add "or thereafter considers, prima facie, could be established".Opp (RN35) [amt to Govt (70) ]After paragraph 186(1)(g), insert: Note: The Registrar may wish to enter some rights or interests immediately and continue to consider others. Rights may be entered when the Registrar forms the appropriate view.Opp (N36) [as amended by Opp (N37)]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 laws 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 one of the native title rights and interests claimed in the application can be established. Note: If the claim is accepted for registration, the Registrar must, under paragraph 186(1)(g), enter on the Register of Native Title Claims details of only those claimed native title rights and interests that can, prima facie, be established. Only those rights and interests are taken into account for the purposes of subsection 31(2) (which deals with negotiation in good faith in a "right to negotiate" process) and subsection 39(1) (which deals with criteria for making arbitral body determinations in a "right to negotiate" process).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.Representative bodiesGovt (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.Govt (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.Opp (N45) [amt to Govt (77) ]After subsection 203FC(2), insert:Traditional materials (2A) Directions must not require the former representative body to act in contravention of its obligations under section 203FCA.MiscellaneousGovt (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)".Opp (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; and and at least one Aboriginal/Torres 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 paragraphs (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.House of Representatives reasons for disagreeing to certain Senate amendmentsRacial Discrimination ActSenate Amendment Opp(RN42)The amendment replaces subsection 7(1) and provides that the Native Title Act 1993 (NTA) is intend ed to be read and construed subject to the provisions of the Racial Discrimination Act 1975 (RDA). The House of Representatives has modified this amendment and consequently the Senate version is rejected.ConfirmationSenate Amendments Govt(3), Opp(N5), (N10) and Govt(9)These amendments, dealing with aspects of the definitions of `previous exclusive possession act' and `scheduled interest' respectively, have been modified by the House of Representatives and the Senate versions are consequently rejected.Senate Amendment Opp(N3)This amendment to subsection 23B(9A) removes Crown to Crown grants from the definition of `previous exclusive possession act' until the grant is used for residential, agricultural or commercial purposes which would otherwise extinguish native title. The amendment has been modified by the House of Representatives and the Senate version is consequently rejected.Senate Amendment Opp(RN2)This amendment to subsection 23B(11) allows for revival of native title if the common law allows it. This Government does not believe that this reflects the current state of the common law so the amendment is rejected.Indigenous land use agreementsSenate Amendments Govt(12), (14), (17) and (19), Opp(N11), (N12), (N13), (N14), (N15), (N16), (N46) and (N47), These amendments to the indigenous land use agreement provisions have been modified by the House of Representatives and the Senate versions are consequently rejected.Senate Amendment Dems-GWA(163)This amendment deals with the removal of ILAs from the Register of Indigenous Land Use Agreements by the Federal Court. This amendment has been modified by the House of Representatives and the Senate version is consequently rejected.Senate Amendments Dems-GWA(20), (21), (22), (25), (26) and (27)These amendments to the ILUA provisions remove references to `future acts'. As ILUAs can already cover any matters relating to native title, the Senate amendments have been rejected by the House of Representatives as unnecessary.Senate Amendments Dems-GWA(23), (24), (28) and (29)These amendments to the ILUA provisions involve representative Aboriginal/Torres Strait Islander bodies in the making of ILUAs to a greater degree than is consistent with Government policy. They have been modified by the House of Representatives and the Senate versions are consequently rejected.Senate Amendments Dems-GWA(30), (31) and (32A)These amendments make technically incorrect cross-references to representative bodies and have been rejected by the House of Representatives.Primary productionSenate Amendment Govt(26), Opp(N19)These amendments deal with an amended definition of `mine' in section 253. As this definition has been slightly modified by the House of Representatives the Senate version has been rejected.Senate Amendments Harradine(N1)/Opp(N17), Harradine(N2)/Opp(N18) and Harradine(R9)These amendments, limiting the types/timing of primary production activities, have been modified by the House of Representatives and the Senate versions are consequently rejected.RenewalsSenate Amendment Govt(29) This amendment to section 24IC in the Bill ensures that a future act which results in the conversion of a term mining lease into a perpetual mining lease is not a `permissible lease etc. renewal' under section 24IC. There is some doubt as to whether this amendment was accepted by the Senate. Accordingly the House of Representatives has rejected that amendment and has made another amendment in the same terms.Senate Amendment Opp(RN27)This amendment, limiting the renewal of mining titles in section 26D, has been modified by the House of Representatives and consequently the Senate version is rejected.Senate Amendments Opp(N21), (N22), (RN23), Harradine(14)These amendments to the provisions dealing with permissible lease etc. renewals in Subdivision I of Schedule 1, prevent renewals for a longer term than the original grant or the perpetualisation of leases etc. The amendments have been modified by the House of Representatives and consequently the Senate versions are rejected.Services to the publicSenate Amendment Opp(RR101)This amendment to section 24KA, which deals with facilities for services to the public, adds two subsections relating to procedural rights. This amendment has been modified by the House of Representatives and consequently the Senate version is rejected. Senate Amendments Opp(93), (94) and (95)/Dems-GWA(87)These amendments to section 24KA limit the coverage of the provision. The amendments have been modified by the House of Representatives and consequently the Senate version is rejected.Senate Amendment Dems-GWA(92)/Opp(100)This amendment to section 24KA gives native title holders the same procedural rights as freeholders on land where only co-existing native title is possible. This amendment has been modified by the House of Representatives and consequently the Senate version is rejected.Freehold test and offshoreSenate Amendments Opp(RR107) and (RR110)These amendments to section 24MD and 24NA, which deal respectively with the treatment of acts passing the freehold test and acts affecting offshore places, add subsections relating to procedural rights. These amendments have been modified by the House of Representatives and consequently the Senate versions are rejected.Senate Amendments Harradine(18) and (21)These amendments to sections 24MD and 24NA attempt to ensure that the acquisition of native title is non-discriminatory, however, they are based on the mistaken belief that the only way in which non-native title interests are acquired by the Crown is through compulsory acquisition. These amendments have been modified by the House of Representatives and consequently the Senate versions are rejected.Right to negotiateSenate Amendment Govt(44)This amendment to section 35 includes a reference to a deleted provision (section 34A) and, as it has been modified by the House of Representatives, the Senate version is rejected.Senate Amendment Opp(N28) This amendment has been rejected by the House of Representatives because it is unnecessary. The amendment removes a reference to section 34A in amendment Govt(44) which is also being rejected.Senate Amendment Opp(R114) This amendment to section 26, about whether or not a compulsory acquisition is for government purposes or for the benefit of a third party, has been modified by the House of Representatives and consequently the Senate version is rejected.Senate Amendments Harradine(22), Opp(201)/Dems-GWA(170), Opp(221)/Dems-GWA(188), Opp(287)/Dems-GWA(258)These amendments to provisions dealing with the right to negotiate and the provision of infrastructure in Subdivision P have been modified in the House of Representatives and consequently the Senate versions are rejected.Senate Amendments Opp(117)/Dems-GWA(107)/Harradine(23), Opp(200)/Dems-GWA(169), Opp(218)/Dems-GWA(185) and Opp(295)/Dems-GWA(265)These amendments to provisions dealing with towns and cities in Subdivision P of Schedule 1, and section 251C have been modified by the House of Representatives and consequently the Senate versions are rejected. Amendment Opp(218)/Dems-GWA(185) also deletes section 251D which defines land where public work is situated. The deletion of section 251D is contrary to Government policy and consequently this Senate amendment is also rejected.Senate Amendments Opp(N24), (N25) and (N26)These amendments to section 26A impose additional conditions on the Minister in relation to the making of a determination to exclude acts from the right to negotiate. These amendments have been modified by the House of Representatives and consequently the Senate versions are rejected.Senate Amendments Opp(125)/Dems-GWA(114), Opp(126)/Dems-GWA(115), Opp(127)/Dems-GWA(116), Opp(134)/Dems-GWA(124) and Opp(170)/Dems-GWA(136)These amendments relate to the effect of permitting conjunctive agreements in relation to the right to negotiate for the renewal of mining leases and exploration/prospecting tenements in sections 26D, 33 and 38. The amendments have been modified by the House of Representatives and consequently the Senate versions are rejected.Senate Amendment Opp(152) This amendment to subsection 36B(2) in relation to notice being given by the Minister to the arbitral body has been modified by the House of Representatives and consequently the Senate version is rejected.Senate Amendment Opp(142)This amendment replaces the content of section 36 which requires arbitral body determinations to be made as soon as practicable. As the House of Representatives has made subsequent modifications to section 36, the Senate version is rejected.Senate Amendments Opp(143), (145), (146), (147), (148), (151), (153), (154), (155), (156), (157), (158), (161), (162), (163), (164) and (165)These amendments were made to section 36A which deals with a Ministerial determination where the arbitral body's determination is delayed. Section 36A has subsequently been modified by the House of Representatives and consequently the Senate version is rejected.Senate Amendment Opp(167)/Dems-GWA(135)This amendment provides for a fourth kind of arbitral body determination, namely one which provides, where the parties agree, for particular matters to be the subject of further negotiations or determined in a specified manner. This amendment has been modified by the House of Representatives and consequently the Senate version is rejected.Senate Amendments Opp(172)/Dems-GWA(138) and Dems-GWA(137) These amendments are made to section 39 which lists the criteria for making arbitral body determinations. As the amendments change the criteria to be considered by the arbitral body in unacceptable ways including potentially duplicating processes required under State/Territory environmental laws by requiring the arbitral body to consider environmental factors in detail, consequently the House of Representatives has rejected these amendments. The amendment relating to the criteria referring to economic detriment of the proposed act has been modified by the House of Representatives and consequently the Senate version is rejected.Senate Amendment Opp(173)This amendment is made to section 40 which prevents the re-opening by an arbitral body of issues that have already been the subject of an agreement between the parties. The effect of this amendment is not clear and the amendment is rejected by the House of Representatives.Senate Amendments Opp(118)/Dems-GWA(108)/Harradine(N3), Opp(178)/Dems-GWA(146)/Harradine(31), Opp(198)/Dems-GWA(167)/Harradine(52), Opp(203)/Dems-GWA(172)/Harradine(53) and Opp(355)/Dems-GWA(330)/Harradine(54) These amendments relate to section 43A which provides procedural rights for native title holders in relation to mining on coexisting tenures at least equivalent to those of the coexisting tenure holder. These amendments have been modified by the House of Representatives and consequently the Senate versions have been rejected.Senate Amendments Opp(R209) and (210) These amendments are made to section 237 which relates to the expedited procedure. As the effect of these amendments have been modified by the House of Representatives the Senate versions have been rejected.Senate Amendments Dems-GWA(268) and (270) These amendments remove 2 items in the Bill which clarify the status of the intertidal zone between the high and low water marks. These amendments are rejected by the House of Representatives.Statutory access rightsSenate Amendment Opp(N30) This amendment to section 44A grants statutory access rights prior to a determination of native title to those native title claimants who have been either prevented by government action from accessing the pastoral lease or who had been refused access to the pastoral lease by the lessee or his agent. This amendment is contrary to the Government's 10-point plan as it does not limit statutory access to those who had access as at the date of the Wik decision. For this reason the amendment has been rejected by the House of Representatives.Senate Amendment Opp(183)/Dems-GWA(151) This amendment omits section 44C and has the effect that pastoralists could be vulnerable to common law actions by registered native title claimants who have been given statutory access to their pastoral lease in the time before their claim is finally determined by the court. The removal of this protection for pastoralists is contrary to Government policy and consequently the amendment is rejected by the House of Representatives.CompensationSenate Amendments Govt(51) and Opp (RN32)These amendments are made to item 102, subsection 18AB(2) of the Federal Court of Australia Act 1976. The amendments permit the Federal Court to make rules providing an alternative procedure for small compensation claim applications. As these amendments have been modified by the House of Representatives, the Senate versions have been rejected.Senate Amendment Opp(R188)This amendment to subsection 51(1) confuses the compensation processes for impairment of native title with compensation for extinguishment of native title and is consequently rejected by the House of Representatives.Senate Amendment Opp(N31)This amendment to subsection 51(1A) confuses compensation for the effect on native title of an act done in accordance with NTA processes and other compensation which is payable for an invalid act (due to non-compliance with NTA processes). The amendment is therefore rejected by the House of Representatives.Claims process and the sunset clauseSenate Amendment Govt(61)This amendment to section 13 related to time limits for native title determination applications, including where sections 47A or 47B may apply. As the sunset clauses have been removed from the Bill this amendment is not now necessary and consequently has been rejected by the House.Senate Amendment Dems-GWA (333)This amendment omits a transitional provision related to subsection 50(2A) which deals with time limits for native title compensation applications but also removes an unrelated transitional provision which has to be retained. The House of Representatives has moved a separate amendment to remove the transitional item relating to the sunset clause. The Senate amendment is not now necessary and consequently has been rejected by the House.Registration testSenate Amendments Govt(70), Opp(RN34) and (RN35) The latter two amendments were made to Amendment Govt(70) and attempted to insert into section 186 (which deals with the contents of the Register of Native Title Claims) provisions which the Government believes are of no legal effect. Amendment Govt(70) has been remade subsequently by the House of Representatives and the Senate version is therefore rejected. An additional amendment has been made by the House of Representatives which achieves the outcome intended by the other Senate amendments.Senate Amendments Opp(N36) [as amended by Opp(N37)] These amendments were made to section 190B and contain a reworking of the major elements of the registration test. As these amendments make traditional physical connection an alternative to the Mabo test they have been further modified by the House of Representatives and the Senate version has been rejected.Representative bodiesSenate Amendments Govt(77), (78) and Opp(N45) These amendments to the provision dealing with the transfer of records from a former to a new representative body (section 203FC) are intended to ensure that the wishes of the traditional custodians of such information are taken into account in relation to the transfer. These amendments have been modified by the House of Representatives and consequently the Senate version is rejected.MiscellaneousSenate Amendment Govt(87) This amendment to section 214, which lists the disallowable instruments in the NTA, has been modified by the House of Representatives and consequently the Senate version has been rejected.Senate Amendment Opp(N49)This amendment inserted a transitional provision which would have had the effect of validating and giving special treatment to one particular infrastructure project in Queensland. There was doubt about the provision's legal effectiveness and consequently the amendment was rejected by the House of Representatives.Schedule of the amendments made by the House of Representatives.(H1) Schedule 1, item 3, page 5 (lines 4 and 5), omit the item, substitute:3 Section 7Repeal the section, substitute:7 Racial Discrimination Act (1) This Act is intended to be read and construed subject to the provisions of the Racial Discrimination Act 1975 . (2) Subsection (1) means only that: (a) the provisions of the Racial Discrimination Act 1975 apply to the performance of functions and the exercise of powers conferred by or authorised by this Act; and (b) to construe this Act, and thereby to determine its operation, ambiguous terms should be construed consistently with the Racial Discrimination Act 1975 if that construction would remove the ambiguity. (3) Subsections (1) and (2) do not affect the validation of past acts or intermediate period acts in accordance with this Act.[section 7]Confirmation(H2) Schedule 1, item 9, page 14 (lines 23 to 28), omit subsection (9), substitute:Exclusion of acts benefiting Aboriginal peoples or Torres Strait Islanders (9) An act is not a previous exclusive possession act if it is: (a) the grant or vesting of any thing that is made or done by or under legislation that makes provision for the grant or vesting of such things only to, in or for the benefit of, Aboriginal peoples or Torres Strait Islanders; or (b) the grant or vesting of any thing expressly for the benefit of, or to or in a person to hold on trust expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders; or (c) the grant or vesting of any thing over particular land or waters, if at the time a thing covered by paragraph (a) or (b) is in effect in relation to the land or waters. Note: The expression Aboriginal peoples is defined in section 253.Exclusion of national parks etc. (9A) An act is not a previous exclusive possession act if the grant or vesting concerned involves the establishment of an area, such as a national, State or Territory park, for the purpose of preserving the natural environment of the area.Exclusion of acts where legislation provides for non-extinguishment (9B) An act is not a previous exclusive possession act if it is done by or under legislation that expressly provides that the act does not extinguish native title.Exclusion of Crown to Crown grants etc. (9C) If an act is the grant or vesting of an interest in relation to land or waters to or in the Crown in any capacity or a statutory authority, the act is not a previous exclusive possession act : (a) unless, apart from this Act, the grant or vesting extinguishes native title in relation to the land or waters; or (b) if the grant or vesting does not, apart from this Act, extinguish native title in relation to the land or waters—unless and until the land or waters are (whether before or after 23 December 1996) used to any extent in a way that, apart from this Act, extinguishes native title in relation to the land or waters.[section 23B](H3) Schedule 1, item 9, page 14 (after line 31), at the end of section 23B, add:Effect of exclusions (11) To avoid doubt, the fact that an act is, because of any of the previous subsections, not a previous exclusive possession act does not imply that the act is not valid.[section 23B](H4) Schedule 1, item 9, page 16 (after line 4), after section 23D, insert:23DA Confirmation of validity of use of certain land held by Crown etc.To avoid doubt, if the act is a previous exclusive possession act because of paragraph 23B(9C)(b) (which deals with grants to the Crown etc.), the use of the land or waters concerned as mentioned in that paragraph is valid.[section 23DA](H5) Schedule 1, item 9, page 16 (line 8), after "23D", insert "or 23DA".[section 23E](H6) Schedule 1, item 9, page 17 (lines 15 to 34), omit subsection (1), substitute: (1) Subject to subsection (2), if a previous non-exclusive possession act (see section 23F) is attributable to the Commonwealth: (a) to the extent that the act involves the grant of rights and interests that are not inconsistent with native title rights and interests in relation to the land or waters covered by the lease concerned, the rights and interests granted, and the doing of any activity in giving effect to them, prevail over the native title rights and interests but do not extinguish them; and (b) to the extent that the act involves the grant of rights and interests that are inconsistent with native title rights and interests in relation to the land or waters covered by the lease concerned: (i) if, apart from this Act, the act extinguishes the native title rights and interests—the native title rights and interests are extinguished; and (ii) in any other case—the native title rights and interests are suspended while the lease concerned, or the lease as renewed, re-made, re-granted or extended, is in force; and (c) any extinguishment under this subsection is taken to have happened when the act was done.[section 23G](H7) Schedule 1, item 49, page 140 (line 24), omit paragraph (1)(a), substitute: (a) anything set out in Schedule 1, other than a mining lease or anything whose grant or vesting is covered by subsection 23B(9), (9A), (9B), (9C) or (10) (which provide that certain acts are not previous exclusive possession acts); or[section 249C]Indigenous land use agreements(H8) Schedule 1, item 9, page 7 (line 13), omit "If", substitute "Subject to subsection 24EBA(6), if". [section 22B](H9) Schedule 1, item 9, page 22 (after line 21), after paragraph (a), insert: (aa) particular future acts (other than intermediate period acts), or future acts (other than intermediate period acts) included in classes, that have already been done;Note: Intermediate period acts are or can be validated only under Division 2A. (ab) changing the effects, that are provided for by section 22B or by a law of a State or Territory that contains provisions to the same effect, of an intermediate period act or of intermediate period acts included in classes;[section 24BB](H10) Schedule 1, item 9, page 23 (after line 30), at the end of section 24BD, add:Procedure where no representative body party (4) If there are any representative Aboriginal/Torres Strait Islander bodies for any of the area and none of them is proposed to be a party to the agreement, the registered native title body corporate, before entering into the agreement: (a) must inform at least one of the representative Aboriginal/Torres Strait Islander bodies of its intention to enter into the agreement; and (b) may consult any such representative Aboriginal/Torres Strait Islander bodies about the agreement.[section 24BD](H11) Schedule 1, item 9, page 25 (lines 19 to 24), omit section 24BI, substitute:24BI Registration of body corporate agreements (1) Subject to this section, the Registrar must register the agreement on the Register of Indigenous Land Use Agreements. (2) The Registrar must not register the agreement if any of the parties to the agreement advises the Registrar, within 1 month after the Registrar gives notice under section 24BH, that the party does not wish the agreement to be registered on the Register. (3) The Registrar must not register the agreement if: (a) a representative Aboriginal/Torres Strait Islander body for any of the area advises the Registrar, within 1 month after the Registrar gives notice under section 24BH, that the requirements of paragraph 24BD(4)(a) were not complied with in relation to the agreement; and (b) the Registrar is satisfied that the requirements were not complied with.[section 24BI](H12) Schedule 1, item 9, page 26 (after line 6), after paragraph (a), insert: (aa) particular future acts (other than intermediate period acts), or future acts (other than intermediate period acts) included in classes, that have already been done; Note: Intermediate period acts are or can be validated only under Division 2A. (ab) changing the effects, that are provided for by section 22B or by a law of a State or Territory that contains provisions to the same effect, of an intermediate period act or of intermediate period acts included in classes;[section 24CB](H13) Schedule 1, item 9, page 28 (after line 11), at the end of section 24CD, add:Procedure where no representative body party (7) If there are any representative Aboriginal/Torres Strait Islander bodies for any of the area and none of them is proposed to be a party to the agreement, a person in the native title group, before entering into the agreement: (a) must inform at least one of the representative Aboriginal/Torres Islander bodies of its intention to enter into the agreement; and (b) may consult any such representative Aboriginal/Torres Strait Islander bodies about the agreement. Note: The registration of agreements that are certified by a representative Aboriginal/Torres Strait Islander body is facilitated under section 24CK.[section 24CD](H14) Schedule 1, item 9, page 35 (after line 14), after paragraph (a), insert: (aa) particular future acts (other than intermediate period acts), or future acts (other than intermediate period acts) included in classes, that have already been done; Note: Intermediate period acts are or can be validated only under Division 2A.[section 24DB](H15) Schedule 1, item 9, page 45 (after line 5), after section 24EB, insert:24EBA Effect of registration on previous acts covered by indigenous land use agreementsCoverage of section (1) The consequences set out in this section apply if: (a) details are on the Register of Indigenous Land Use Agreements of an agreement that includes a statement to the effect that the parties agree to: (i) the validating of a particular future act (other than an intermediate period act), or future acts (other than intermediate period acts) included in classes, that have already been done invalidly; or Note: Intermediate period acts are or can be validated only under Division 2A. (ii) the validating, subject to conditions, of a particular future act (other than an intermediate period act), or of future acts (other than intermediate period acts) included in classes, that have already been done invalidly; or (iii) changing the effects, that are provided for by section 22B (which relates to native title rights and interests) or by a law of a State or Territory that contains provisions to the same effect, of an intermediate period act or of intermediate period acts included in classes; and (b) whichever of the Commonwealth, the State or the Territory to which the act or class of acts is attributable is a party to the agreement; and (c) where, whether under the agreement or otherwise, a person other than the Crown in right of the Commonwealth, a State or a Territory is or may become liable to pay compensation in relation to the act or class of acts—that person is a party to the agreement.Commonwealth future acts valid (2) If subparagraph (1)(a)(i) or (ii) applies and the future act or class of future acts is attributable to the Commonwealth, the act or class of acts is valid, and is taken always to have been valid.State or Territory laws may validate their future acts (3) If subparagraph (1)(a)(i) or (ii) applies and the future act or class of future acts is attributable to a State or Territory, a law of the State or the Territory may provide that the act or class of acts is valid, and is taken always to have been valid. The law may do so by applying to all acts, to classes of acts, or to particular acts, to which subparagraph (1)(a)(i) or (ii) applies in respect of which the requirements of subsection (1) are or become satisfied.Non-extinguishment principle applies to future acts (4) If subsection (2) applies or a law makes provision in accordance with subsection (3), the non-extinguishment principle applies to the act or class of acts unless: (a) the act or class of acts is the surrender of native title; and (b) the agreement includes a statement to the effect that the surrender is intended to have extinguished the native title rights and interests.Compensation consequences of future acts (5) If subsection (2) applies or a law makes provision in accordance with subsection (3), the consequences set out in subsection 24EB(4), (5) or (6), and the consequences set out in subsection 24EB(7), apply to the act or to each of the acts in the class.Changing the effects of validated acts (6) If subparagraph (1)(a)(iii) applies, the effects mentioned in that subparagraph are changed in accordance with the agreement.Note about Schedule 1, item 9:The heading to section 24EB (page 42, line 17) is altered by omitting "future " and substituting "proposed ".[section 24EBA](H16) Schedule 1, item 30, page 131 (lines 7 to 10), omit subsection 199C(3), substitute:Ground for order (3) The ground is that a party would not have entered into the agreement but for fraud, undue influence or duress by any person (whether or not a party to the agreement).Compensation order (4) If the Court orders the Registrar to remove the details, the Court may also order the person who committed the fraud, exerted the influence or applied the duress to pay compensation to any party to the agreement who will suffer loss or damage as a result of the removal of the details.[section 199C]Primary production(H17) Schedule 1, item 9, page 49 (after line 26), at the end of subsection (1), add:; and (e) the future act could have been validly done or authorised at some time before 31 March 1998, if any native title in relation to the area covered by the lease had not then existed.[section 24GB](H18) Schedule 1, item 9, page 52 (after line 16), at the end of subsection (1), add: ; and (d) at some time before 31 March 1998, the activity could have been done under any legislation then in force, or under any lease, licence, permit or authority that could have then been issued, in relation to the area covered by the lease, if any native title in relation to the area covered by the lease had not then existed.[section 24GC](H19) Schedule 1, item 9, page 53 (after line 31), at the end of subsection (1), add: ; and (f) if: (i) before the future act is done, an approved determination of native title is made in relation to the land or waters on which any activity permitted or required by the future act takes place; and (ii) the determination is that native title exists in relation to the land or waters and that the native title rights and interests confer exclusive possession of the land or waters on the native title holders; the doing of the activity is not inconsistent with the exercise of the native title rights and interests.[section 24GD](H20) Schedule 1, page 145 (after line 32), after item 57, insert:57A Section 253 (paragraph (c) of the definition of mine )Repeal the paragraph, substitute: (c) quarry; but does not include extract, obtain or remove sand, gravel, rocks or soil from the natural surface of land, or of the bed beneath waters, for a purpose other than: (d) extracting, producing or refining minerals from the sand, gravel, rocks or soil; or (e) processing the sand, gravel, rocks or soil by non-mechanical means.[section 253]Water etc.(H21) Schedule 1, item 9, page 56 (line 25), omit "forms", substitute "forms and management or regulation of water includes granting access to water, or taking water".[section 24HA](H22) Schedule 1, item 9, page 57 (line 9), omit "forms", substitute "forms and management or regulation of water includes granting access to water, or taking water".[section 24HA]Renewals(H22A) Schedule 1, item 9, page 60 (line 17), at the end of paragraph (c), add "(other than a mining lease)".[section 24IC](H23) Schedule 1, item 9, page 61 (line 18), omit "paragraph 24IB(b)", substitute "paragraph (1)(b)".[section 24ID](H24) Schedule 1, item 9, page 61 (after line 28), at the end of section 24ID, add:Other procedural rights (4) If: (a) the act is a permissible lease etc. renewal of a non-exclusive agricultural lease (see section 247B) or a non-exclusive pastoral lease (see section 248B); and (b) the act is covered by paragraph 24IC(4)(b) or (c); subsection 24MD(6B) applies to the act as if the act were a compulsory acquisition, of the kind mentioned in that subsection, of native title rights and interests in relation to the land or waters that will be affected by the act, done by: (c) if the act is attributable to the Commonwealth—the Commonwealth; or (d) if the act is attributable to a State or Territory—that State or Territory. [section 24ID]Services to the public(H25) Schedule 1, item 9, page 65 (after line 25), after subsection (1), insert:Compulsory acquisitions not covered (1A) To avoid doubt, this Subdivision does not apply to a future act that is the compulsory acquisition of the whole or part of any native title rights and interests.[section 24KA](H26) Schedule 1, item 9, page 67 (line 2), after "holders", insert ", and any registered native title claimants in relation to land or waters in the area concerned,".[section 24KA](H27) Schedule 1, item 9, page 67 (after line 12), after subsection (7), insert:Native title rights and interests to be considered (7A) If, in the exercise of those procedural rights, the native title holders are entitled to have matters considered, those matters include their native title rights and interests.[section 24KA](H28) Schedule 1, item 9, page 67 (after line 27), at the end of section 24KA, add:Satisfying other procedural rights (9) If: (a) because of subsection (7) or any law of the Commonwealth, a State or a Territory, the native title holders have a procedural right that requires another person to do any thing in relation to the native title holders; and (b) there has been no approved determination of the native title; then one way in which the person may give effect to the requirement is: (c) by doing the thing in relation to any registered native title claimant in relation to land or waters in the area concerned; or (d) if there are no such registered native title claimants—by ensuring that any representative Aboriginal/Torres Strait Islander bodies for the area concerned have an opportunity to comment on the doing of the act.[section 24KA]Freehold test and offshore(H29) Schedule 1, item 9, page 69 (after line 32), after paragraph (b), before the example, insert: ; and (c) a law of the Commonwealth, a State or a Territory makes provision in relation to the preservation or protection of areas, or sites, that may be: (i) in the area to which the act relates; and (ii) of particular significance to Aboriginal peoples or Torres Strait Islanders in accordance with their traditions.[section 24MB](H30) Schedule 1, item 9, page 70 (after line 9), at the end of subsection 24MB(2), add:; and (d) a law of the Commonwealth, a State or a Territory makes provision in relation to the preservation or protection of areas, or sites, that may be: (i) in the area to which the act relates; and (ii) of particular significance to Aboriginal peoples or Torres Strait Islanders in accordance with their traditions.[section 24MB](H31) Schedule 1, item 9, page 71 (line 4), before "or otherwise", insert "or by surrender, cancellation or resumption".[section 24MD](H32) Schedule 1, item 9, page 73 (lines 15 to 18), omit all the words in subsection (6) after paragraph (d), substitute: the consequences in subsections (6A) and (6B) apply.[section 24MD]Note about Schedule 1, item 9: The heading to subsection 24MD(6) (page 73, line 4) is replaced by the heading "Consequences of certain acts ".(H33) Schedule 1, item 9, page 73 (after line 18), after subsection (6), insert:Procedural rights (6A) The native title holders, and any registered native title claimants in relation to the land or waters concerned, have the same procedural rights as they would have in relation to the act on the assumption that they instead held ordinary title to any land concerned and to the land adjoining, or surrounding, any waters concerned.Other consequences (6B) If the act is: (a) the compulsory acquisition of native title rights and interests for the purpose of conferring rights or interests in relation to the land or waters concerned on persons other than the Commonwealth, the State or the Territory to which the act is attributable; or (b) the creation or variation of a right to mine for the sole purpose of the construction of an infrastructure facility (see section 253) associated with mining; Note: The acts covered by paragraphs (a) and (b) are not covered by Subdivision P: see subsection (6) and paragraph 26(1)(c). the following consequences also apply: (c) the Commonwealth, the State or the Territory to which the act is attributable must notify each of the following: (i) any registered native title claimant (a claimant ) in relation to the land or waters; and (ii) any native title body corporate (a body corporate ), in relation to the land or waters; and (iii) any representative Aboriginal/Torres Strait Islander body in relation to the land or waters; that the act is to be done; and (d) any claimant or body corporate may object, within 2 months after the notification, to the doing of the act so far as it affects their registered native title rights and interests; and (e) either: (i) in a paragraph (a) case—the Commonwealth, the State or the Territory; or (ii) in a paragraph (b) case—the person who requested or applied for the doing of the act; must consult any claimants, and bodies corporate, who object, about ways of minimising the act's impact on registered native title rights and interests in relation to the land or waters, and, if relevant, any access to the land or waters or the way in which any thing authorised by the act might be done; and (f) if any claimant or body corporate objects, as mentioned in paragraph (d), to the doing of the act and so requests, the Commonwealth, the State or the Territory must ensure that the objection is heard by an independent person or body; and (g) if the independent person or body hearing any objection as mentioned in paragraph (f) makes a determination upholding the objection, or that contains conditions about the doing of the act that relate to registered native title rights and interests, the determination must be complied with unless: (i) the Minister of the Commonwealth, the State or the Territory responsible for indigenous affairs is consulted; and (ii) the consultation is taken into account; and (iii) it is in the interests of the Commonwealth, the State or the Territory not to comply with the determination.Meaning of determination (6C) In paragraph (6B)(g): determination includes recommendation. in the interests of the Commonwealth, the State or the Territory includes: (a) for the social or economic benefit of the Commonwealth, the State or the Territory (including of Aboriginal peoples and Torres Strait Islanders); and (b) in the interests of the relevant region or locality in the Commonwealth, the State or the Territory.[section 24MD](H34) Schedule 1, item 9, page 73 (line 21), omit "(6)", substitute "(6A)".[section 24MD](H35) Schedule 1, item 9, page 73 (after line 33), at the end of section 24MD, add:Satisfying other procedural rights (8) If: (a) because of subsection (6A) or any law of the Commonwealth, a State or a Territory, the native title holders have a procedural right that requires another person to do any thing in relation to the native title holders; and (b) there has been no approved determination of the native title; then one way in which the person may give effect to the requirement is: (c) by doing the thing in relation to any registered native title claimant in relation to land or waters in the area concerned; or (d) if there are no such registered native title claimants—by ensuring that any representative Aboriginal/Torres Strait Islander bodies for the area concerned have an opportunity to comment on the doing of the act.[section 24MD](H36) Schedule 1, item 9, page 74 (line 24), before "or otherwise", insert "or by surrender, cancellation or resumption".[section 24NA](H37) Schedule 1, item 9, page 76 (line 8), after "holders", insert ", and any registered native title claimants in relation to land or waters in the area concerned,".[section 24NA](H38) Schedule 1, item 9, page 76 (after line 26), at the end of section 24NA, add:Satisfying other procedural rights (10) If: (a) because of subsection (8) or any law of the Commonwealth, a State or a Territory, the native title holders have a procedural right that requires another person to do any thing in relation to the native title holders; and (b) there has been no approved determination of the native title; then one way in which the person may give effect to the requirement is: (c) by doing the thing in relation to any registered native title claimant in relation to land or waters in the area concerned; or (d) if there are no such registered native title claimants—by ensuring that any representative Aboriginal/Torres Strait Islander bodies for the area concerned have an opportunity to comment on the doing of the act.[section 24NA]Right to negotiate(H39) Schedule 1, item 9, page 21 (line 2), after "section", insert "24IC (permissible lease etc. renewals) or section".[section 24AA](H40) Schedule 1, item 9, page 60 (line 33), before "the", insert "subject to Subdivision P (which deals with the right to negotiate),".[section 24ID](H41) Schedule 1, item 9, page 60 (after line 33), at the end of paragraph (1)(a), add: Note: Subdivision P applies only to certain renewals of mining leases etc.: see subsections 26(1A) and 26D(1). [section 24ID](H42) Schedule 1, item 9, page 77 (lines 3 to 6), omit "a future act to which Subdivision M (which deals with acts that pass the freehold test) applies that is done by the Commonwealth, a State or a Territory, and is", substitute "certain future acts done by the Commonwealth, a State or a Territory that are".[section 25](H43) Schedule 1, item 9, page 77 (before line 7), before paragraph 25(1)(a), insert: (aa) certain acts covered by section 24IC (which deals with permissible lease etc. renewals);[section 25](H44) Schedule 1, item 9, page 77 (before line 25), before subsection 26(1), insert:Subdivision applies to certain permissible lease etc. renewals (1A) This Subdivision applies to a future act if: (a) section 24IC (which deals with permissible lease etc. renewals) applies to the act; and (b) the act is done by the Commonwealth, a State or a Territory (the Government party ); and (c) the renewal, re-grant, re-making or extension of the term of the lease, licence, permit or authority concerned creates a right to mine.[section 26](H45) Schedule 1, item 9, page 77 (line 26), after "Subdivision", insert "also".[section 26]Note about Schedule 1, item 9: The heading to subsection 26(1) is altered by inserting "also " after "Subdivision ".(H46) Schedule 1, item 9, page 78 (line 5), after "otherwise", insert ", except one created for the sole purpose of the construction of an infrastructure facility (see section 253) associated with mining".[section 26](H47) Schedule 1, item 9, page 78 (after line 5), at the end of subparagraph (i), add: Note: Rights to mine created for the sole purpose of the construction of an infrastructure facility associated with mining are dealt with in subsection 24MD(6B). [section 26](H48) Schedule 1, item 9, page 78 (lines 8 to 15), omit subparagraph (iii), substitute: (iii) the compulsory acquisition of native title rights and interests, unless: (A) the purpose of the acquisition is to confer rights or interests in relation to the land or waters concerned on the Government party and the Government party makes a statement in writing to that effect before the acquisition takes place; or (B) the purpose of the acquisition is to provide an infrastructure facility; or Note: Certain compulsory acquisitions covered by sub-subparagraphs (iii)(A) and (B) are dealt with in subsection 24MD(6B).[section 26](H49) Schedule 1, item 9, page 79 (lines 1 and 2), omit paragraph (f), substitute: (f) an act that is the compulsory acquisition of native title rights and interests and that relates solely to land or waters wholly within a town or city (see section 251C).[section 26](H50) Schedule 1, item 9, page 79 (line 22), omit "considers", substitute "is satisfied".[section 26A](H51) Schedule 1, item 9, page 84 (line 9), omit "identification and protection", substitute "protection and avoidance".[section 26B](H52) Schedule 1, item 9, page 88 (after line 5), at the end of subsection 26D(1), add: ; and (d) the term of the right is not longer than the term of the earlier right; and (e) no rights are created in connection with the right that were not created in connection with the earlier right.[section 26D](H53) Schedule 1, item 9, page 88 (lines 12 to 19), omit paragraphs (2)(b) and (c), substitute: (b) this Subdivision applied to the earlier act and, because: (i) an agreement of the kind mentioned in paragraph 31(1)(b) was made in relation to the earlier act; or (ii) a determination was made under section 38 that the earlier act might be done, or might be done subject to conditions being complied with; the earlier act was not invalid to any extent under section 28; and (c) the agreement or determination: (i) included a statement to the effect that, if the later act were done, this Subdivision would not apply to the later act; and (ii) provided 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[section 26D](H54) 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 36A or 38. If they make such an agreement before such a determination is made, the application is taken to have been withdrawn.[section 35](H55) Schedule 1, item 9, page 99 (line 28) to page 100 (line 2), omit subsection 36(2), substitute:Determination not to be made where failure to negotiate in good faith (2) If any negotiation party satisfies the arbitral body that any other negotiation party (other than a native title party) did not negotiate in good faith as mentioned in paragraph 31(1)(b), the arbitral body must not make the determination on the application. Note: It would be possible for a further application to be made under section 35.[section 36](H56) Schedule 1, item 9, page 100 (line 5), omit "4 months", substitute "6 months".[section 36](H57) Schedule 1, item 9, page 100 (line 11), after "time", insert "later than 4 months".[section 36](H58) Schedule 1, item 9, page 100 (line 19), omit "4 months", substitute "6 months". [section 36](H59) Schedule 1, item 9, page 101 (after line 2), after subsection 36A(1), insert:Requirement for State/Territory Minister to consult before making determination (1A) If: (a) the relevant Minister is a State Minister or a Territory Minister; and (b) the determination is that the act may be done or may be done subject to conditions to be complied with by any of the parties; the relevant Minister may only make the determination after he or she has consulted the Commonwealth Minister about the determination.[section 36A](H60) Schedule 1, item 9, page 101 (line 25), omit "(if relevant)".[section 36B](H61) Schedule 1, item 9, page 101 (line 26) to page 102 (line 6), omit subsection (2), substitute:Notice to arbitral body (2) The relevant Minister must give written notice to the arbitral body requiring it, by the end of the day specified in the notice, to give the Minister and each negotiation party a summary of material that has been presented to the arbitral body in the course of the arbitral body considering whether to make a determination under section 38 in relation to the act.[section 36B](H62) Schedule 1, item 9, page 103 (after line 12), at the end of paragraph (6)(a), add: (iii) any consultations with the Commonwealth Minister as mentioned in subsection 36A(1A); and[section 36B](H63) Schedule 1, item 9, page 105 (after line 27), after subsection (1), insert:Determinations may cover other matters (1A) A determination may, with the agreement of the negotiation parties, provide that a particular matter that: (a) is not reasonably capable of being determined when the determination is made; and (b) is not directly relevant to the doing of the act; is to be the subject of further negotiations or to be determined in a specified manner. Example: The arbitral body could determine that a mining lease may be granted subject to site clearance procedures to be determined by a third person.Matters to be determined by arbitration (1B) If: (a) the manner specified is arbitration (other than by the arbitral body); and (b) the negotiation parties do not agree about the manner in which the arbitration is to take place; the arbitral body must determine the matter at an appropriate time.[section 38](H64) Schedule 1, item 9, page 106 (lines 30 to 33), omit paragraphs 39(1)(c) and (d), substitute: (c) the economic or other significance of the act to Australia, the State or Territory concerned, the area in which the land or waters concerned are located and Aboriginal peoples and Torres Strait Islanders who live in that area;[section 39](H65) Schedule 1, item 9, page 113 (line 16) to page 116 (line 22), omit section 43A, substitute:43A Exception to right to negotiate: satisfactory State/Territory provisionsDetermination about alternative provisions (1) If: (a) a law or laws of a State or Territory provide for alternative provisions to those contained in this Subdivision in relation to some or all acts to which this Subdivision applies that: (i) are attributable to the State or Territory; and (ii) relate, to any extent, to an area of land or waters that is an alternative provision area (see subsection (2)); and (b) the Commonwealth Minister determines in writing that the provisions comply with subsections (4) and (6) and that the requirements of subsection (7) are complied with; then, subject to subsection (10), while the determination is in force, the alternative provisions have effect instead of this Subdivision.Meaning of alternative provisionarea (2) An alternative provision area is: (a) an area: (i) that is, or was (whether before or after this Act commenced), covered by a freehold estate in fee simple or by a lease (other than a mining lease); and (ii) over which all native title rights and interests have not been extinguished; or Example 1: An example of such an area is an area covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease (including one subject to section 47). Example 2: An example of a freehold estate in fee simple over which all native title rights and interests may not have been extinguished is one whose grant or vesting is covered by subsection 23B(9), (9A), (9B) or (9C). (b) an area that is, or was (whether before or after this Act commenced): (i) covered by a reservation, proclamation, dedication, condition, permission or authority, made or conferred by the Crown in right of the State or Territory or by the making, amendment or repeal of legislation of the State or Territory, under which the whole or a part of the land or waters in the area was to be used for public purposes generally or for a particular purpose; and (ii) in use for public purposes, for the particular purpose or for a similar purpose; or Example: An example of an area covered by paragraph (b) is an area containing a national park. (c) an area that, when the act is done, is wholly within a town or city (see section 251C).Notification of proposed determination (3) Before making the determination, the Commonwealth Minister must: (a) notify all representative Aboriginal/Torres Strait Islander bodies for the land or waters concerned of the proposed determination; and (b) invite submissions from them about the proposed determination; and (c) consider any submissions made in response to the invitation.Requirement to be satisfied: procedures etc. (4) For the purposes of paragraph (1)(b), the alternative provisions comply with this subsection if, in the opinion of the Commonwealth Minister, they: (a) contain appropriate procedures for notifying each of the following that an act to which the provisions apply is to be done: (i) any registered native title claimant (a claimant ) in relation to any of the land or waters to which the act relates; (ii) any registered native title body corporate (a body corporate ) in relation to any of that land or waters; (iii) any representative Aboriginal/Torres Strait Islander body in relation to any of that land or waters; and (b) give any claimant or body corporate the right to object, within a specified period after the notification, to the doing of the act so far as it affects their registered native title rights and interests; and (c) if the act is of the kind mentioned in subparagraph 26(1)(c)(iii) (which deals with certain compulsory acquisitions)—provide for consultation (including provide in relation to mediation) between: (i) any claimants, and bodies corporate, who object; and (ii) the State or Territory; about ways of minimising the act's impact on registered native title rights and interests in relation to the land or waters concerned; and (d) in any other case—provide for consultation (including provide in relation to mediation) between: (i) any claimants, and bodies corporate, who object; and (ii) the person who requested or applied for the doing of the act; about ways of minimising the act's impact on registered native title rights and interests in relation to the land or waters concerned, including about any access to the land or waters or the way in which any thing authorised by the act might be done; and (e) if any person objects as mentioned in paragraph (b), provide for the objection to be heard by an independent person or body; and Example: The independent person or body could be a State or Territory tribunal which deals with acts of the kind concerned, for example, a mining warden where the act is the grant of a mining lease. (f) provide for judicial review of the decision to do the act; and Example: The judicial review could be by the Supreme Court of the State or Territory. (g) provide that, if the independent person or body hearing any objection as mentioned in paragraph (e) makes a determination upholding the objection, or that contains conditions about the doing of the act that relate to registered native title rights and interests, the determination must be complied with unless: (i) the Minister of the State or the Territory responsible for indigenous affairs is consulted; and (ii) the consultation is taken into account; and (iii) it is in the interests of the State or the Territory not to comply with the determination; and (h) if the act is of the kind mentioned in subparagraph 26(1)(c)(iii) (which deals with certain compulsory acquisitions)—confer on each claimant and body corporate procedural rights that are not less favourable than those they would have on the assumption that they instead held ordinary title to any land concerned and to the land adjoining, or surrounding, any waters concerned.Meaning of determination (5) In paragraph (4)(g): determination includes recommendation. in the interests of the State or the Territory includes: (a) for the social or economic benefit of the State or the Territory (including of Aboriginal peoples and Torres Strait Islanders); and (b) in the interests of the relevant region or locality in the State or the Territory.Requirement to be satisfied: compensation (6) For the purposes of paragraph (1)(b), the alternative provisions comply with this subsection if, in the opinion of the Commonwealth Minister, they provide for compensation for the effect of the act on native title to be payable and for any dispute about the compensation to be determined by an independent person or body.Requirement to be satisfied: preservation of areas of significance (7) For the purposes of paragraph (1)(b), the requirements of this subsection are complied with if, in the opinion of the Commonwealth Minister, a law of the Commonwealth, the State or the Territory provides, for the whole of the land or waters to which the alternative provisions relate, in relation to the preservation or protection of areas, or sites, that may be of particular significance to Aboriginal peoples or Torres Strait Islanders in accordance with their traditions.Different provisions for different kinds of land or waters (8) Laws of a State or Territory may make different provision under subsection (1) in relation to different kinds of land or waters. Note: In such a case, the Commonwealth Minister would need to make separate determinations under that subsection.Revocation of determination (9) If at any time the alternative provisions are amended so that they no longer comply as mentioned in paragraph (1)(b), the Commonwealth Minister must: (a) advise the State Minister or the Territory Minister concerned in writing of the fact; and (b) if, at the end of 90 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 90 days after advising the State Minister or Territory Minister, the alternative provisions do not comply and the Common wealth 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 90 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.Exclusion of certain compulsory acquisitions (10) The alternative provisions do not apply to an act of the kind mentioned in subparagraph 26(1)(c)(iii) (which deals with certain compulsory acquisitions) if the act involves the acquisition of native title rights and interests in relation to land or waters in both an alternative provision area and an area that is not an alternative provision area.Regulations to make transitional provisions (11) The regulations may prescribe any modifications of this Act that are necessary to deal with transitional matters arising from the making, amendment or revocation of determinations under this section.[section 43A](H66) Schedule 1, item 9, page 116 (lines 27 to 29), omit "a leased or reserved area (as defined in subsection 43A(2)) and an area (the other area ) that is not a leased or reserved area", substitute "an alternative provision area (as defined in subsection 43A(2)) and an area (the other area ) that is not an alternative provision area".[section 43B]Note about Schedule 1, item 9: The heading to section 43B (page 116, lines 23 and 24) is replaced by the heading "Mining rights covering both alternative provision area and other area ". (H67) Schedule 1, item 9, page 117 (line 4), omit "leased or reserved area", substitute "alternative provision area". [section 43B](H68) 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(9)(c)(ii)".[section 214](H69) Schedule 1, item 34, page 133 (line 16), omit "43A(6)", substitute "43A(9)".[section 214](H70) Schedule 1, item 42, page 138 (lines 16 to 18), omit the item, substitute:42 Paragraph 237(a)Repeal the paragraph, substitute: (a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and[section 237](H71) 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.[section 251C](H72) Schedule 2, item 71, page 212 (line 25), omit "34A,".[section 207B](H73) Schedule 5, item 11, page 352 (line 8), omit "43A(8)", substitute "43A(11)".[item 11 of Schedule 5]Statutory access rights(H74) Schedule 1, item 9, page 120 (line 5), at the end of subsection 44C(1), add ", except in proceedings before the Federal Court or a recognised State/Territory body that are related to the making of an approved determination of native title.".[section 44C]Compensation(H75) Schedule 2, item 102, page 223 (before line 10), before paragraph (b), insert: (aa) to hear and determine applications under subsection 50(2) of that Act for determinations of compensation, where: (i) the amount of the compensation to which the applicant claims to be entitled is less than $100,000 or such other amount as is prescribed instead for the purposes of this paragraph; and (ii) at the time the hearing and determination takes place, one or more approved determinations of native title have been made in relation to the whole of the area concerned;[section 18AB of Federal Court Act](H76) Schedule 2, item 102, page 223 (after line 10), after subsection (2A), insert: (2B) If, in accordance with subsection (2A), Rules of Court are made delegating to the Judicial Registrars the powers of the Court to hear and determine applications under subsection 50(2) of the Native Title Act 1993 for determinations of compensation as mentioned in paragraph (2A)(aa), the Judges, or a majority of them, may, in respect of any such application, give such directions as they consider appropriate for the purpose of ensuring that, so far as is reasonably practicable, the application is determined as expeditiously and cheaply as possible and without unnecessary formality. (2C) Without limiting the directions that may be made, they may cover all or any of the following: (a) principles and procedures to be applied in hearing and determining the application; (b) referring any matter for mediation; (c) ensuring that the issues in dispute are identified as soon as possible and that the procedures to be applied, and the evidence that may be given, in the proceedings are limited to what is necessary to resolve those issues; (d) limiting the amount of costs of the proceedings that may be awarded against the claimant; (e) requiring some or all of the costs of the claimant to be paid by another party to the proceedings.[section 18AB of Federal Court Act]Claims process and sunset clause(H77) Schedule 5, item 18, page 355 (lines 14 to 17), omit the item.[item 18 of Schedule 5]Representative bodies(H78) 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.[section 203FC](H79) Schedule 3, item 11, page 239 (after line 10), after section 203FC, insert:203FCA Representative body etc. to comply with wishes of traditional custodians (1) If: (a) a representative body, in performing its functions and exercising its powers; or (b) a former representative body (as defined in subsection 203FC(5)), in complying with directions in accordance with subsection 203FC(3); deals with traditional materials, or any information contained in them, the body must make all reasonable efforts to comply with the wishes of the traditional custodians of the traditional materials about the way in which the traditional materials or information is 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.[section 203FCA]Registration test(H80) Schedule 2, page 200 (after line 9), after item 60, insert:60A After paragraph 186(1)(f)Insert: ; (g) a description of the native title rights and interests in the claim that: (i) the Registrar in applying subsection 190B(6); or (ii) a recognised State/Territory body in applying provisions equivalent to that subsection; considered, prima facie, could be established. [section 186](H81) Schedule 2, item 63, page 202 (after line 3), after subsection (3), insert:Amending Register where additional information provided (3A) If: (a) the Registrar accepts for registration a claim made in an application under section 63 or an amended application under subsection 64(4); and (b) in accordance with this section, the Registrar includes in the Register details of the claim and a description of the nature and extent of the native title rights and interests concerned; and (c) afterwards, but before a native title determination in relation to the application or amended application is made, the applicant provides to the Registrar further information relating to any native title rights and interests that were claimed in the application but whose details and description were not included in the Register; and (d) the Registrar considers that, if the information had been provided before the claim had been accepted for registration, the details and description would have been included in the Register; the Registrar must amend the Register to include the details and description.[section 190](H82) Schedule 2, item 63, page 202 (after line 29), at the end of subsection (1), add:Note: In the case of an amended application (under subsection 64(4)), the Registrar would be required to consider the claim in the amended application even if the Registrar had already accepted for registration the claim in the original application. In such a case, if the claim in the amended application were then accepted for registration, the Registrar would be required under subsection 190(3) to amend the Native Title Register to reflect the amendment.[section 190A](H83) Schedule 2, item 63, page 205 (line 22) to page 206 (line 28), omit subsections (5) to (10), substitute:Factual basis for claimed native title (5) The Registrar must be satisfied that the factual basis on which it is asserted that the native title rights and interests claim ed exist is sufficient to support the assertion. In particular, the factual basis must support the following assertions: (a) that the native title claim group have, and the predecessors of those persons had, an association with the area; and (b) that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests; and (c) that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs.Prima facie case (6) The Registrar must consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established.Note: If the claim is accepted for registration, the Registrar must, under paragraph 186(1)(g), enter on the Register of Native Title Claims details of only those claimed native title rights and interests that can, prima facie, be established. Only those rights and interests are taken into account for the purposes of subsection 31(2) (which deals with negotiation in good faith in a "right to negotiate" process) and subsection 39(1) (which deals with criteria for making arbitral body determinations in a "right to negotiate" process).Physical connection (7) The Registrar must be satisfied that at least one member of the native title claim group: (a) currently has or previously had a traditional physical connection with any part of the land or waters covered by the application; or (b) previously had and would reasonably have been expected currently to have a traditional physical connection with any part of the land or waters but for things done (other than the creation of an interest in relation to land or waters) by: (i) the Crown in any capacity; or (ii) a statutory authority of the Crown in any capacity; or (iii) any holder of a lease over any of the land or waters, or any person acting on behalf of such a holder of a lease.No failure to comply with section 61A (8) The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that, because of section 61A (which forbids the making of applications where there have been previous native title determinations or exclusive or non-exclusive possession acts), the application should not have been made.No extinguishment etc. of claimed native title (9) The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that: (a) to the extent that the native title rights and interests claimed consist of or include ownership of minerals, petroleum or gas—the Crown in right of the Commonwealth, a State or a Territory wholly owns the minerals, petroleum or gas; or (b) to the extent that the native title rights and interests claimed relate to waters in an offshore place—those rights and interests purport to exclude all other rights and interests in relation to the whole or part of the offshore place; or (c) in any case—the native title rights and interests claimed have otherwise been extinguished (except to the extent that the extinguishment is required to be disregarded under subsection 47(2), 47A(2) or 47B(2)).[section 190B](H84) Schedule 2, item 63, page 208 (after line 29), after subsection (1), insert:Content of notice where failure to satisfy physical connection test (1A) If the only reason why the Registrar cannot accept the claim for registration is that the condition in subsection 190B(7) (which is about a physical connection with the claim area) is not satisfied, the notice must advise the applicant of the applicant's right to make an application to the Federal Court under subsection (2) and of the power of the Court to make an order in accordance with subsection (4) in respect of the application.[section 190D](H85) Schedule 2, item 63, page 209 (after line 7), at the end of section 190D, add:Court order where physical connection test failed (4) If, on an application under subsection (2) in a case to which subsection (1A) applies, the Court is satisfied that: (a) prima facie, at least some of the native title rights and interests claimed in the application can be established; and (b) at some time in his or her lifetime, at least one parent of one member of the native title claim group had a traditional physical connection with any part of the land or waters and would reasonably have been expected to have maintained that connection but for things done (other than the creation of an interest in relation to land or waters) by: (i) the Crown in any capacity; or (ii) a statutory authority of the Crown in any capacity; or (iii) any holder of a lease over any of the land or waters, or any person acting on behalf of such a holder of a lease; the Court may order the Registrar to accept the claim for registration.Opportunity to be heard (5) Before making an order under subsection (4), the Court must give to any person who is a party to the proceedings in the Court under Part 4 in relation to the application an opportunity to be heard in relation to the making of the order.[section 190D](H86) Schedule 5, item 11, page 348 (lines 8 and 9), omit "non-exclusive agricultural lease or a non-exclusive pastoral lease", substitute "freehold estate or a lease (other than a mining lease)".[item 11 of Schedule 5]Note about Schedule 5, item 11: The heading to subitem (4) (page 348, line 4) is altered by omitting "non-exclusive agricultural or pastoral lease " and substituting "freehold estate or non-mining lease ".Miscellaneous(H87) Schedule 2, page 149 (after line 10), after item 18, insert:18A At the end of Division 6 of Part 2Add:60AA Body corporate for Meriam people (1) If: (a) a body corporate is or becomes incorporated under the Aboriginal Councils and Associations Act 1976 ; and (b) all of the members of the body corporate are members of the Meriam people (see subsection (2)); and (c) one of the objects of the body corporate is to become a registered native title body corporate in relation to native title held by the Meriam people; and (d) a member of the Meriam people applies to the Federal Court for a determination under this section; and (e) the Court is satisfied that the applicant represents the Meriam people; then: (f) this Act applies as if the body corporate were a prescribed body corporate nominated under subsection 56(2) or 57(2) in relation to those native title holders; and (g) the Court may make a determination under section 56 or 57, in relation to that native title, as if the Court were doing so at the same time as making an approved determination of native title as mentioned in section 55; and (h) if the Court makes such a determination under section 56 or 57—the Native Title Registrar must enter the name and address of the body corporate on the National Native Title Register; and (i) while those details are on the Register, the body corporate is taken to be a registered native title body corporate for the purposes of this Act. (2) In this section: Meriam people means the people who were described by the High Court in its declaration in Mabo v Queensland [No. 2] (1992) 175 CLR 1 as the Meriam people.[section 60AA](H88) Schedule 2, page 210 (after line 11), after item 70, insert:70A Paragraph 206(d)Omit "at the end of 2 years after the commencement of this Part", substitute "from time to time".[section 206]70B Section 207Omit "at the end of 5 years after the Parliamentary Joint Committee is first appointed", substitute "on 23 March 2004".[section 207]12:32:004948Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I move:That the message be considered in committee of the whole forthwith. I have moved this motion on the basis of an understanding that, in the committee stage, we will commence with members of the opposition parties speaking to the motion as a whole and making in the committee stage what might otherwise be regarded as second reading debate speeches. The government would have a generous attitude to that. We will then move into consideration of the amendments that are specifically before the committee divided up into the 15 subject matters that cover the amendments—those that we are asking the Senate not to insist on and those that we are asking the Senate to agree to.Question resolved in the affirmative.12:33:004948Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I move:That the committee does not insist on its amendments disagreed to by the House of Representatives and agrees to the amendments made by the House of Representatives.I trust the Senate has received by now the list of all those amendments broken up into the two categories—that is, those moved and agreed by the House of Representatives and the Senate amendments disagreed to by the House of Representatives—by the 15 subject matters into which all of those amendments fall. I suggest to the committee that our discussion of this overall motion be based on a consideration of the amendments and any amendments to be moved thereto on the basis of those subjects and in the order contained in the Senate document. As I said, that will be preceded by general statements by senators in the committee stage.On behalf of the government, I do not belabour the debate. This bill has been debated now for some 89 hours in this chamber. I believe that is by far the longest debate of any bill in the history of the Senate. Therefore, I do not want to go over all that ground again, except to say that the amendments we are now proposing to the Senate will produce a much better and much more workable Native Title Act. The focus of the government throughout this debate has been to produce a more workable Native Title Act.I think there is general agreement that the existing Native Title Act has deficiencies which must be removed and requires remedial action, particularly in the light of the Wik decision for which the act was not prepared. We have never wanted a double dissolution per se. All we have been about is to produce for Australia a much more workable Native Title Act, and the amendments we propose today will do that. They will do so on the basis of fully respecting the common law as declared by the High Court in the Mabo and Wik decisions. We believe they will lead to a Native Title Act that will produce—for the first time in the 4½ years that we have had the Native Title Act—real outcomes for Aboriginal people.I do not need to remind you that, despite having the Native Title Act for 4½ years and over $100 million of expenditure on the Native Title Tribunal, there are still only two determinations of native title for the benefit of the Aboriginal people, one of which involved the agreed compulsory acquisition of that native title. It is the case that the procedures put in place by the previous government, albeit with the best of intentions, have not produced any real outcomes for Aboriginal people. We believe the amendments that we put before you, as agreed with Senator Harradine, will start to produce real outcomes for Aboriginal people.The amendments and the final bill to amend the Native Title Act will, in our view, also ensure not complete but much greater certainty for Australians most affected by common law native title—other than the Aboriginal people themselves—who are the key economic enterprises in rural and regional Australia. And, most specifically, farming and mining must learn to live with and accommodate native title. We believe that the act as amended by these amendments will produce considerably greater certainty—but it cannot eliminate uncertainty—for those industries. It will provide a mechanism for the working together, the living together and the cooperative sharing of our land in a way that is workable and produces meaningful results.Most importantly, the act as amended by us will ensure that we can incorporate the common law of native title into what is fundamentally a land management system founded in and based on state government management of that land management system. It is vital in this federation, where constitutionally land management is a function of the states, that we do incorporate native title satisfactorily and effectively into those state based land management systems.The act, as amended and agreed with Senator Harradine, will ensure satisfactory minimum Commonwealth standards that must be applied in the case of land dealings involving native title claimants and holders. We have been very willing to agree that those minimum standards be set. Those minimum standards are fundamentally premised on the Commonwealth's view that what is important is that, in relation to procedural rights, we strive to achieve the maximum equality for all Australians.We acknowledge, of course, that the nature of the property rights themselves involved are different. The property rights of a pastoral lessee and the property rights of the native title holders are different and involve different considerations. But we have endeavoured to make sure that, in the way in which those property rights are dealt with from a procedural point of view with respect to any other economic activity affecting these rights, we strive for procedural equivalence.We have set in place minimum standards that the states must comply with if they wish to move over to their own systems. We think that is a very important advance and one that will enable us all to get on with, live with and accommodate common law native title.I would also say, as a reminder of the position we have repeatedly put in this chamber, that the government has absolutely no doubt about the constitutional validity of the Native Title Act as amended by this bill. That question has been raised again by a statement released over the weekend by certain constitutional lawyers. I remind the Senate that the government received independent legal advice, which was released, from the then Solicitor-General, Gavan Griffith QC, and also David Jackson QC, attesting to that constitutional validity. Nothing in the Hindmarsh Island case put any question mark under the expert nature of that advice or the findings published in that advice.We have no real question at all about the constitutional validity. To the extent that we have accommodated Senator Harradine's quite legitimate concerns to ensure proper respect for native title in the way this act deals with native title, it would only go to further remove any questions.As is the case in this democracy, anyone can bring an action to the High Court challenging any legislation passed by this parliament as being somehow not valid under the constitution. That happens on a regular basis. We would anticipate that someone—as was the case with the Keating government's Native Title Act—is likely to bring such a challenge. The government has already said on the record that we anticipate that. We would be happy to facilitate that. I think the Prime Minister is also on record as saying that, if necessary, we will support it—in other words, we will facilitate the challenge and support the financing—because we have absolutely no doubt about the constitutional validity of the act as amended by the Native Title Amendment Bill 1997 [No. 2] . We believe that, if there is to be a challenge, it should happen straightaway, be dealt with straightaway and any doubts removed as soon as possible, so that Australia can get on with the business of incorporating native title into our land management system, fully respecting the common law as determined by the High Court in Mabo and Wik, and Australians can start to work together in relation to land management and activity on land, fully respecting each other's property rights. With those remarks, I commend the motion to the committee.12:42:004950Bolkus, Sen NickSenator BOLKUSXE4SAALP00—In commencing my speech today, I start by paying respects to the Ngunnawal people upon whose land we do stand. I also acknowledge the terrible irony that in NAIDOC week, a week dedicated to the survival of indigenous culture, we are debating in this place a bill that fails to recognise—indeed, it attacks—the special attachment that indigenous Australians have to the land. Our current discussion of indigenous rights is not just about recognising past wrongs. As we deliberate on this third stage of the Wik debate—and I am sure there will be more stages to come—we are making history. But the history that we are making today is not history that will reflect on us and this chamber kindly. The history we are making will be there for our children and our grandchildren to see and judge us. They will judge this day as a day of national shame, because today is a day of appeasement of racists and racism.The forces unleashed in our community, often given refuge and encouragement by a Prime Minister who panders to them, will not be defeated by today's taking away of the rights of indigenous Australians. Appeasing the Prime Minister will not satiate his desire to use the issue of race for partisan political advantage. If it is not Wik, it will be heritage legislation. If it is not heritage legislation, it will be cuts to ATSIC or immigration—the list may be endless. In the face of such malevolence, one should not blink; one should not give it succour. In the face of such malevolence, our civic responsibility as a parliament is to stare it down and expose it for what it is.When this parliament failed to recognise native title, the High Court through the Mabo decision prompted parliament into action. In 1993 most of this parliament did the nation proud. Rather than duck the issue as the coalition did at the insistence of the now Prime Minister, this chamber faced up to the issue of native title in a historic compromise that brought farmers, miners and indigenous Australians together. The deal was never perfect and it was always going to need modification in the light of experience. The previous Labor government suggested such amendments in 1995 as a result of both the Brandy and Lane decisions.But today we are going backwards. Today the Senate is being asked to place its imprimatur on an expedient political deal indecently made through the exclusion of the people most affected by it, and a deal designed to do just one thing—to save the political hide of John Winston Howard. It is a flawed deal. It is flawed by virtue of the process that exclud ed indigenous interests and some of the states from being consulted about its terms. Despite good faith being shown by indigenous Australians at every step of this process, they have been either excluded or ignored by a Prime Minister more interested in playing the dog whistle of racism than in consulting with the very people whose interests are most affected. And it is a deal that will only succeed through this Senate because of the tainted nature of this chamber.The deal struck between the Prime Minister and Senator Harradine is also flawed because it also fails to match up to the government's rhetoric of respecting Wik and providing equality for all Australians. It is flawed because it contains provisions that are simply unfair and not workable. Today, therefore, we are being asked to endorse a deal which has neither moral nor democratic legitimacy.In assessing whether anyone in this place should vote for this deal, it is important to establish basic criteria as to what is appropriate and what is not. Senator Harradine has said that the most important thing in this debate is to avoid the prospect of a deeply divisive double dissolution election. I agree that such an event should not happen. It is simply unimaginable to the vast majority of Australians that such a situation could in fact be contemplated, but for 10 months our Prime Minister has wanted just that. He has been prepared to tear this nation apart for what he sees as short-term political advantage. It was only when this strategy failed, following his abysmal failure of leadership during the recent Queensland state election, that the Prime Minister changed his tune.Even now this deal shows that he has lost none of his venom against indigenous Australians and their interests. Rather than respect their rights, he has simply sought to package his prejudices in a slightly different form. He has done the absolute minimum that he had to do in order to buy the one vote he needed to avoid the thing he previously wanted most—a double dissolution election. And he has done so by placing what I believe to be impossible moral pressure on Senator Harradine to choose between this bill and a double dissolution election, to decide what he believes to be the lesser of two evils. To force Senator Harradine to make such a choice is the kind of politics that breeds contempt for our political system.But this parliament should not be the victim of racist blackmail. We have a civic and moral duty to the people of Australia not to allow laws to be made that are racially discriminatory, that offend the basic right that we as Australians share and that are contrary to the spirit of giving everyone a fair go. If the Prime Minister cannot accept that, if he cannot show the leadership that this nation requires on the issue, then it is for him to live with and no other before his departure from the job.What criteria should we be using in judging the bill that comes before us now? The Age editorial on Friday provided the appropriate test. It said:In the climate of fear and hostility that has been generated by misunderstanding of the High Court's Wik judgment, the right course should have been to insist that there can be no settlement that does not provide a just outcome for all concerned.It is the view of the Australian Labor Party that this distasteful deal falls short of that most fundamental of tests. Let us not forget that the first two rounds of debate on this bill saw 90 per cent of what indigenous Australians wanted traded away. While no concessions have been required from the miners, pastoralists or state governments, 90 per cent of what indigenous Australians sought to retain has already been lost. This deal takes away a further five per cent—without even consulting them, without asking them once what they feel about it. That is shameful politics, of which no decent thinking Australian can be proud.I believe that Senator Harradine does not share the Prime Minister's lack of regard for the interests of indigenous Australians in this debate. I know Senator Harradine and I know the people who have advised him. I do not believe that they would have intentionally acted against the interests of indigenous Australians. But the process adopted by you, Senator Harradine, in reaching this deal was fundamentally flawed. Despite numerous requests for you to do so, you refused to involve the National Indigenous Working Group, the representatives of our indigenous people, in these deliberations. Nor was there consultation with the Australian Labor Party. Yet Senator Harradine presumed to know the views of both indigenous Australians and the Australian Labor Party in this matter. You should not have.I regret that I do not share the same views about the government's involvement in this matter. Right from day one the Prime Minister and his government have treated the views of the indigenous community with contempt. Mr Howard pretends that he cares for the interests of our indigenous community but he clearly does not. In a manner quite cold and cowardly, he ignored the most basic recognition of the right to natural justice of indigenous Australians.As even Father Brennan, one of the self-proclaimed architects of this deal, admitted in an article in the Sydney Morning Herald on Friday:It—the deal—has been done in a self-interested party political way with Aborigines left in the dark. But that is the only way the country's leadership can operate at the moment.What a shameful admission. In short, the government's attitude to the indigenous community has been paternalistic, contemptuous and dismissive. As Noel Pearson rightly said:Indigenous Australians were once again left sitting out on the woodpile while the white men settled their fate in the station house kitchen.But the failure to consult does more than just taint this outcome. The exclusion of indigenous Australians from this deal has poisoned the wellspring from which it comes. The last thing that we want out of this process is the first thing that we are going to get. This legislation will be worked through the courts for at least another decade. Anyone who knows native title will tell you that without at least a modicum of goodwill the whole process will end up back in the courts. That is exactly what the Native Title Act was intended to avoid.Another indication of the government's bad faith in securing this deal is its failure to consult the Labor states, most notably Queensland. It was not all that long ago that, in the House of Representatives on 24 May, prior to the Queensland state election, the Prime Minister said:Of all the states in Australia, none has a greater need of predictability and certainty when it comes to mining and pastoral titles and none has a greater stake in the proper resolution of this issue.Yet as soon as his coalition partner Borbidge lost that election the interests of Queensland were totally ignored. When asked whether consultations with Queensland had occurred, the new Premier, Peter Beattie, said on Lateline on Thursday night:The bottom line is no. I was told after the decision was made.Do not tell us that we do not have here a grubby political fix designed by this Prime Minister to save his ailing leadership and to extract as many concessions for his conservative cronies as he can.Western Australia is another interesting player in all this. In order to get the native title bill through, the Prime Minister was forced to buy off the conservative states and territories most affected by native title—Western Australia and the Northern Territory. As the Prime Minister admitted in the House on Thursday last week:On the question of compensation, an arrangement was reached in relation to compensation provision of 75 and 25.One of the many problems with this deal is that the Australian taxpayer is being left holding the bag. They will have to pay for the political survival of John Howard. In effect, the Prime Minister has written the states and territories a blank Commonwealth cheque that will be used to extinguish as much native title as the states and territories like. This will literally cost billions of dollars as the states, freed from the financial constraint, will go and engage in a widespread range of extinguishment—Commonwealth funded, taxpayer funded, unnecessary extinguishment. For a government that likes to flout its financial management credentials, this is the height of fiscal irresponsibility.Let us turn to this supposedly great deal in detail. Let us see what it achieves: whether it matches the rhetoric of the pre-publicity or whether it is just another selling-out of the interests of indigenous Australians. The central component of the deal was proposed section 43A, the alternative to the right to negotiate. As Father Brennan said on AM on Friday, the Howard legislation does not take away the right to negotiate on pastoral leases; it simply allows the state governments to do so. Isn't this a statement that would have served Pontius Pilate well?All the government has done in this deal is shift the problems to the states, according to Father Brennan. Eighteen months after the Wik decision, the Prime Minister has still not fixed the problem that he alleges is most fundamental to rural and regional Australia. He has passed the buck to the states and, once again, state after state will have to go through the pain.Some people have said that this particular mechanism throws a challenge to the Labor states to show their bona fides about protecting the rights of indigenous Australians on pastoral lease land. I say in respect of this that Labor's starting point has always been to maintain the substance of the right to negotiate. We have always recognised that its retention is fundamental to the constitutionality of the Native Title Act and its beneficial character. It was negotiated in 1993 as a trade-off for the right of veto that native title holders have at common law to prevent acts inconsistent with the continued enjoyment of their native title.Labor did not agree to 43A in April because we had grave reservations about its effects. It has been further modified since that time. It is now even more objectionable. It contains no definitions or time lines. The range of lands upon which it operates has been greatly expanded to include historic lists, towns and cities, reserves and Aboriginal reserves. Contrary to what has been said by Father Frank Brennan, proposed section 43A does not contain the basic minimum moral standards for consultation. Do not be confused about proposed section 43A: it is about extinguishing native title, selling it off to the lowest bidder.We are also being told that this package provides equality before the law. It does not. While proposed section 43A does prescribe some minimum standards, it makes no connection between what those standards should be and the actual rights held by other land owners. Nothing in this clause underwrites proposed section 43A to ensure that outcome. Accordingly, it is possible under proposed section 43A to provide native title holders with lesser procedural rights than the holders of a lease over the same piece of land on which their native title exists. We do have concerns on the equality argument. Provision is not about equality; rather, it is about permitting the states to treat native title holders less favourably than other interests on the land.In a Senate controlled by One Nation, the Senate will not have the power to stop such racially discriminatory treatment. Nor does proposed section 43A recognise something which is fundamental to native title: that is, native title is, in fact, bound up in the traditional connection with the land; it is not just another common law property right. In accepting this clause, I believe Senator Harradine has unwittingly agreed to legislate in a manner discriminatory to indigenous interests. I am sorry to say it, but there has been a failure in one respect. I think Senator Harradine has failed to recognise that native title is unique. (Extension of time granted)I turn to aspects of this package that have not really received much publicity as yet. It has been acknowledged that there are some major characteristics, but there are also hidden nasties in this package that we will identify in the course of this debate. One of them arises in the area of primary production. Hidden away in the new amendments is one that puts a lie to the government's repeated claim that it is legislating in a way that respects the Wik decision.Former Harradine amendment N1, opposition amendment N17, limited the extent of primary production activities permitted on non-exclusive leases without the application of the right to negotiate to those which could lawfully have been done prior to 23 December 1996, the date of that Wik decision. This amendment effectively limits the rights of pastoralists to those that they had at the date of that decision. However, the new government amendment H17 authorises not only those acts that could have been done but also those acts that could have been authorised to be done as exempt from the right to negotiate. This means that the right to negotiate will not apply to the full range of primary production activities for which a pastoralist could have obtained a right to do so, not just those rights that they actually held.It is also worth noting—and I think it is a critical part of this discussion—that the amendment changes the applicable date to 31 March 1998, over 15 months after the Wik decision was handed down. The sole purpose of this amendment is to give full effect to the new Land Administration Act 1997 of Western Australia. It is an act that permits the holders of pastoral leases in WA to engage in a wide range of additional primary production activities that were not authorised to be engaged in at the date of the Wik decision. The effect of the interaction of the proposed amendment to this act and the Land Administration Act is to authorise wide scale extinguishment of native title on pastoral leases in WA. Not content with authorising land grab after land grab in its original bill, the government has sought and will achieve, at taxpayers' expense, the further extinguishment of native title inconsistent with the right of coexistence in the Wik decision.I turn briefly to the Racial Discrimination Act. Some have tried to portray the new clause with respect to the RDA as repeating solely the form of the clause that was available in April. We do not believe that is true. The inclusion of one small word `only' has a most important impact on the meaning of the clause. Labor has always said that we wanted the act, as amended by this bill, to be read as a whole as subject to the RDA. In its old form, this amendment ensured that the act, as amended, would continue to survive only if as a package it was beneficial. The result of this new wording is that this protection has been removed.If the parliament does have the power to pass racially discriminatory legislation and this is such a law, this parliament will stand condemned for having authorised gross violations of the human rights of indigenous Australians. It is inconceivable to think that we would be tolerating legislation that does so. We on the Labor side of politics believe that section 51(xxvi) of the Constitution will not authorise such a law, but we also believe that we, the parliament, should not leave it to the High Court to decide this fundamental moral issue. So we will oppose the clause that is proposed. If Senator Harradine and the government believe that the act should not have such an effect, they should have no problem in accepting the clause as it was in April.In conclusion, I do not think there is any doubt that in reaching this deal both the Prime Minister and Senator Harradine have given ground. Both have compromised on what they claimed to be their bottom lines. The 10-point plan is no longer intact, but nor are important elements of the compromise that Senator Harradine offered the government back in April. The Labor Party did not support the Harradine compromise in April, nor do we support the further retreats from it that have happened now. Our critics will say that this is because we want a double dissolution election. That is not true. But we will not be morally blackmailed into agreeing to a package of amendments that are unworkable, constitutionally uncertain and racially discriminatory. We are not prepared to appease the forces of racism in this country, and no reasonable Australian would expect us to. Fellow senators, I believe we will be recorded in history; history is watching us. If we give in now, if we hold up that white piece of paper, history will not remember us well.13:02:004954Faulkner, Sen JohnSenator FAULKNER5K4NSWALP00—From the outset, ever since the Mabo decision by the High Court, the approach of John Howard and the coalition parties to the concept of native title has been insensitive, narrow-minded and mean-spirited. On this, as on many issues, John Howard has consistently refused to listen to those who have a different view from him. The Prime Minister has again displayed his gross lack of respect and goodwill for indigenous people in his refusal to involve them in recent negotiations—HX5WOODLEYSenator Woodley—Mr Temporary Chairman, I raise a point of order. We were handed a list. I was ready to speak. It has been changed. If this parliament wants cooperation from the Democrats, this is not the way to get it.5K4Faulkner, Sen JohnSenator FAULKNER—On the point of order, Mr Temporary Chairman: your predecessor in the chair asked me whether, given the call, I would speak. I said yes. I am more than happy to have Senator Woodley speak but, given that I was called, I spoke. Apparently there was an understanding that Senator Woodley speak, and I am more than happy to allow Senator Woodley to speak now, and at some later stage in the debate I will make what I hope will be a useful contribution.8U4LEESSenator Lees—Mr Temporary Chairman, on the point of order: I think we need to clarify now whether the list as circulated—10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Murphy)—Senator Lees, I do not have a list at the moment.8U4LEESSenator Lees—It was circulated from Senator Evans's office. I do understand that it is an advisory list and it is indeed entitled an informal speakers list. But I think, for the benefit of everybody, either we are going to be using this list or we throw it out. I ask for some clarification from the chair.AX5EVANSSenator Chris Evans—Mr Temporary Chairman, could I indicate, as the author of the list, that it was made very clear to the Democrats' whip, so I am surprised that there is any confusion on the part of the Democrats. It is very clear also on the document I sent out. There is no agreement with the government about a speakers list. What I did, in talking with the Greens and Democrats, was issue an informal speakers list guide of non-government senators, excluding Senator Harradine, so that people had some idea when they would be called and they would be in the chamber. It was purely an informal thing done by me to assist people so that they knew when to come in—there were 15 or so of us looking to speak in the debate—rather than everybody waiting for the call. It has no formal status. It was done to try to assist us so that we did not get into this sort of position. As I say, it was discussed with the Greens and the Democrats' whip as a measure to assist the debate in the committee stage. As to whom the chairperson calls, that is obviously a matter for the chair, but it was designed to assist the process.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—I have not got a list. The previous chair indicated to me who the next speaker to be called was, and I followed that. Senator Faulkner has indicated that, if Senator Woodley wishes to speak now, whether there is or is not a list or what the relevance of the list is, he should do so. Seeing that Senator Faulkner is no longer in the chamber, I call Senator Woodley.13:06:004955Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—Mr Temporary Chairman, I am certainly not one to stand on my dig; I never have been. We are trying to cooperate with one another. I was asked to be somewhere else at this time but, because of the need to be in the chamber, I am here. It is difficult to know how to arrange one's day. I acknowledge that it was an informal list, but it is a day on which we need to cooperate. I wish to acknowledge also the Ngunnawal people upon whose land we are debating today.It is little wonder that, around the corridors of Parliament House, some people are referring to today as `Groundhog Day' after the movie that saw the main character experience the same day over and over again. This is the third time we have debated the Native Title Amendment Bill. In some ways it is hard to establish a reason for doing so; that is, if one takes the reasons which are given, they do not seem to have enough substance to have us here again on this issue. The fundamental reason which is constantly canvassed in the press is that we are debating this legislation again and looking at an agreement between Senator Harradine and the government in order to avoid a double dissolution, race based election.It is really within the province of the Prime Minister (Mr Howard) to decide on a double dissolution election. No-one has forced him to call an election, let alone a double dissolution election. We understand why he cannot hold a double dissolution election; it is because he would be wiped out in such an election. This agreement is quite clearly a way for the Prime Minister to save face so that he can go to the electorate and say, `Our agreement has saved a double dissolution election based on race.' But whether early or late, whether a double dissolution or a half Senate election, race will be an issue. One Nation's presence guarantees that. The Liberal Party, almost single-handedly, has guaranteed that One Nation will have a very large presence in the next federal election.If the coalition wishes to regain some credibility in this whole issue, then let it sign the code of race ethics, which Senator Margaret Reynolds has proposed. That, as a commitment to an election, would certainly do much to take away the threat of a race based election. The only reason I can find for us having this third debate—at least according to the media—is that it is a stay of execution for the Prime Minister.Why are the Democrats opposing this Wik 10-point plan once again? Apart from the fundamental issue of justice for Aboriginal and islander Australians, there is the fundamental question of equity. To understand how equity works, we need to ask: who benefits and who loses? There is no doubt that Aboriginal and islander people are the losers. In December 1997 they lost nearly all of the amendments that they proposed to the 10-point plan; and Mr Howard achieved, by our calculation, about 85 per cent of his 10-point plan. In April the Aboriginal and islander people lost another one or two per cent. With this bill, the Prime Minister achieves somewhere between 90 and 95 per cent of the 10-point plan, and even higher if we disregard the sunset clause that nobody ever thought was a serious sticking point.There is very little left of indigenous rights, especially if the right to negotiate is left to the states. What about the 1967 referendum, which gave the Commonwealth direct and deliberate responsibility to legislate on behalf of Aboriginal and islander people? Why did it do that? It was because the states had failed so miserably and had been treating Aboriginal and islander people so badly that the people of Australia said, in the 1967 referendum, `The Commonwealth must take responsibility.' Now we are saying that the right to negotiate will be the responsibility of the states. This is a complete reversal of the will of the Australian people as expressed through the highest vote in any referendum that has ever been conducted in this country. The states have failed badly in the past and there is nothing to suggest that they would treat Aboriginal and islander people any differently in the future.There is also no doubt about who wins. Whilst there are some small family farmers and small miners who need certainty, the biggest winners are large pastoral leaseholders such as the Sultan of Brunei, Janet Holmes a Court, Kerry Packer, Rupert Murdoch and, we believe, the Suharto family. I note also the purchase last week of a $4 million pastoral property by Don McDonald, the President of the National Party. Although it has native title claims over it, that does not seem to bother him. Perhaps he knew, when he negotiated to purchase, what was happening. Most mining companies, who really are the big players in this whole issue, are trans-national corporations with appalling records on human rights over many years. They are the winners.The Democrats have consistently opposed the Wik 10-point plan on grounds of equity, justice and compassion, and because it flies in the face of all we believe about the nature of civilised society based on the Judaeo-Christian ethic. This ethic is based on two principles: a preferential option for the poor and the place of land in establishing an economic base for the delivery of lasting justice.The preferential option for the poor means that the measure of compassionate civil society is how we care for the most disadvantaged in that society. To the extent that we do not care, we are less than civilised. This is also the most consistent theme through all of the scriptures, not only Jewish and Christian but also many other religions as well. This has been the basis for all advances in human rights over the centuries of human history. This principle is opposed to the excessive individualism and market fundamentalism which seem to be the driving force of this particular government, both of which are based on individual self-interest.The second principle of the Judaeo-Christian ethic is the place of land in delivering justice, because it provides an economic base. This economic base means that people are then able to make their contribution not based on handouts or charity but on justice; not based on dependency but based on the opportunity to contribute unique gifts, which are what the Aboriginal people of Australia want to contribute to this country. The land is also a spiritual, cultural and historical base as well.Let me detail for you the economic injustice which has been the issue of the last 50 years of this century, especially through the growth of world debt, which reinforces poverty and starvation for the majority of the world's population. This has replaced colonialism and slavery as the great curse and scourge of the globe in 1998. Indeed, it is much worse than slavery, for world debt has enslaved a thousand times the number of slaves who were ever taken from the Pacific or from Africa. That is why all the major churches around the world have proclaimed 2000 AD as a year of jubilee. A letter to all Australians from the Catholic bishops of Australia stated:In the Year 2000 itself, we will not simply be celebrating a great anniversary. We will also, at the invitation of Pope John Paul II, be celebrating a Year of Great Jubilee.The jubilee comes from a very long tradition, at least 3,000 years old, described in the Old Testament and repeated right through the scriptures. The letter continues:It is a year like the one described in Leviticus 25:10: "You shall hallow the fiftieth year, and proclaim liberty throughout the land to all its inhabitants; it shall be a jubilee for you, when each of you shall return to his property and each of you shall return to his family." In such years equality was to be recovered, freedom, property and land were to be restored to the dispossessed, and so the poor were to be protected and cared for.All the churches right around the world are proclaiming the year 2000 as a year of jubilee and I believe, in the light of that, what we do here in this debate is absolutely critical.The year of jubilee, in the tradition of Jesus Christ, was part of the whole thrust of what he meant when he spoke about the Kingdom of God and when he proclaimed the year of the Lord's favour as recorded in Luke, chapter 4. He filled out the meaning of jubilee as a time when not only would debts be forgiven but land would be restored, slaves would be set free and there would be environmental justice as well. All of these were caught up in the whole idea of jubilee. We celebrate and look forward to the celebration of jubilee, but not with much enthusiasm in terms of what this bill does to the Aboriginal and Torres Strait Islander people. In the terms of the ministry of Jesus Christ, a proclamation of jubilee was made by him at Nazareth, and he did this on the basis that, in the end, the earth belongs to nobody but to the Lord, and we are stewards.The notion of debt and the forgiveness of debt is a very important part of the prayer that we pray at the beginning of every sitting of the Senate. The word translated so often as `trespass' is really a technical word which means `debt'. So what we are saying at the beginning of each Senate sitting is that we should forgive debt as we forgive others their debts against us.In the proclamation of the jubilee, we are seeking to establish justice, and I would suggest that what we are doing now is the very opposite of that. The story in the scripture of Ahab, Jezebel, Nathan and Elijah is a very telling one at this point in time because it is the story of a king who took away from a poor man his property, and the condemnation of the prophet at that time was not only severe but was also followed by judgment. I am giving you this because the very name of this bill and the very name that the press has given us so often in terms of the Wik people is an example of what we are talking about. Here are people who for generations have sought, through the laws of this country, to obtain justice—not to take anyone else's land but simply to obtain title to their own land. They have sought not to force pastoralists or miners off the land that they occupy but to cooperate with them and simply establish their own right to negotiate and to live on the land that has been theirs for thousands of years. By this bill we are saying to those people—not to people who have been separated from the land but to people who have a physical connection—`Sorry, folks, but it is not on. Justice will not be delivered for you, even though your name is used on the very 10-point plan that we are debating.'13:21:004958Faulkner, Sen JohnSenator FAULKNER5K4NSWALP00—As I indicated a few moments ago when I first commenced this contribution, since the Mabo decision by the High Court, the approach of the Prime Minister, Mr Howard, and the coalition parties to the concept of native title has been a particularly insensitive, narrow-minded and mean-spirited approach. On this issue, as with so many other issues, the Prime Minister has consistently refused to listen to those who have a different view to him. The Prime Minister has again displayed this gross lack of respect and goodwill for indigenous people in his refusal to involve them in the recent negotiations regarding this package that is now before the Senate.Right from the start, the government wanted to use this bill as a double dissolution trigger. The bill was to be the vehicle to deliver a poll-driven and socially divisive race election. The Liberals' very clear intention was to run hard with a misleading, threat to your backyard type of campaign in rural and regional Australia.The Liberal and National parties believed that would be a sure-fire electoral winner, enough to drag this shopsoiled Prime Minister back from the disasters of nursing homes, the endless disputation with the states over education and health funding, and the long line of ministers falling on their swords due to both gross impropriety and incompetence. It was John Howard's tactic to cover up the massive election negatives of Telstra and the GST.How do we know it was the Prime Minister's agenda? We know it for certain because we have exposed the advertising campaign that was developed in his own office. This Prime Minister had his department working on the content of advertise ments, booking and paying for national newspapers to run two advertisements over the Australia Day weekend. These two advertisements clearly indicate the nature of the proposed broader campaign: one with a large proportion of a map of Australia stained brown; the other with a rubbish strewn humpy and the words `The Australian dream'. Over $3 million worth of advertisements proposed in this initial campaign were to be paid for by the taxpayer as a prelude to an early race based double dissolution election, and the research done for this campaign also paid for by the taxpayer was to be used by the Liberal Party's advertising agencies for the coalition's own advertisements in the election campaign itself.It is now common knowledge that John Howard's race election intentions were thrown off course because the focus groups conducted by Brian Sweeney and Associates clearly showed that these two advertisements would have been counterproductive. They would have had the opposite effect to that intended and may well have seen voters empathising with the pro-Aboriginal side of the native title debate. That was the reason the advertisements were pulled at the very last minute, literally hours before printing.Then on 13 June the people of Queensland delivered another message to the Prime Minister. In the Queensland election we had the spectacle of Rob Borbidge speaking of the Aboriginal threat to freehold and suburban backyards. While obviously a false and demonstrably outlandish claim, the coalition had no compunction at all about stooping to that level. But no Australian should be fooled into thinking that the native title deal now before the Senate will alleviate the divisions created by the Howard government. No-one should believe that the package before us reduces in any way the likelihood of a race based election. Any election with One Nation as a participant will have race right up-front. With John Howard's original tacit approval and his subsequent confusion and fear, One Nation has now proven to be a lightning rod for many of those who believe that native title should be extinguished full stop.If we need further signals about the nature of the next election campaign, remember last week's press conference by the member for Oxley (Ms Hanson), the One Nation Party's launch of their immigration party? What about the continued uncertainty over native title underlined by Professor Tony Blackshield on AM this morning and the Prime Minister's incapacity to provide national leadership on race issues? All these and other factors mean that, whether this bill is passed or not, we are on track for an election where race issues are going to be central. The Prime Minister continues to drive a political wedge into a hitherto cohesive and united Australian society. The Prime Minister's simplistic assertions of what he called the native title problem have proved to be the initial fuel for the One Nation bonfire, one which is now burning out of John Howard's control. It will be a powerful feature of the next election with or without the amendments that are before us today.This deal has been finalised in such a way as to ensure that all indigenous people will view the final product with suspicion, with trepidation and with very little goodwill. And they will be justified. The Labor Party has been saying for months now that a resolution of the native title issue could be reached only through the endeavours and good faith of all parties involved. At no time has the Labor Party accepted the exclusion of anyone from the negotiating table. We never will. We have always been adamant that the miners should be involved and that the farmers and the pastoralists should be involved, just as the indigenous people should be there. Negotiations involve the legitimate rights of all these groups, and natural justice means that all should have been heard. But John Howard has cut one of those groups right out of the loop. The Prime Minister told us last Thursday in the parliament when referring to the agreement now before us:It has been possible with goodwill on both sides for that to be achieved.The Prime Minister was not referring to Aboriginal people as comprising one of those sides; the sides to which he was referring were the government and Senator Harradine. The Prime Minister of this country spoke of governing for all of us. He remains oblivious to his own wilful destruction of the goodwill of this nation's original inhabitants.In the future when further issues arise—and with something as fundamental and as complex as native title they will arise—none of us should be surprised if our indigenous people view the current Prime Minister with absolute distrust, as someone who has demonstrated time and again his basic lack of goodwill towards them. John Howard has misunderstood indigenous Australians all his political life, and he has done so to the detriment of his own political reputation. Now, as Prime Minister, his failure has damaged Australia and all Australians.I think it is important to remind the Senate again that, far from being obstructionist, the Labor opposition has bent over backwards time and again in working with the government and all stakeholders to try to come up with a workable solution. We did not block this legislation last year; we passed the bill not once but twice, even though more than 80 per cent of our amendments were defeated. We felt that what we did achieve with our successful amendments was a more acceptable piece of legislation that at least had some chance of survival in the High Court. We validated titles that were potentially invalid, we were successful in making the legislation subject to the Racial Discrimination Act and we were successful in retaining the right to negotiate. We still contend that the bill, as amended and passed by this Senate, should be acceptable to the government. It took into account the needs of all stakeholders.At the heart of the government's package before the Senate today are elements that will lead to its collapse. After continued public utterances in favour of negotiation and agreement as being the way forward in resolving native title at the local level, the government put in place a system that is claims based, not agreements based. Firstly, it has to be realised that only registered claimants have status in the government's system. Sections 43A and 26A have no explicit process for registration. Furthermore, despite the fact that Senator Harradine would have us believe that the registration test encompasses the children of the stolen generation, it does not.Native title holders in their situation must prove their case in the costly and time consuming processes of the Federal Court. If they were to wait for notice of proposed developments on their lands before lodging a claim, the state based processes in section 43A would be finished—the mine or whatever other development was under way would be finished—long before the Federal Court had dealt with their registration.The end result is clear. In order to protect their rights, native title holders must register now, and they must register across vast tracts of land to cover any possible future developments. The result of this will be that a system, already overloaded to breaking point, will grind to a halt. This process is inevitable and will start the instant the bill is proclaimed.The situation is exacerbated by the government's provision that all of the existing 720 or so claims already in the system must be reassessed; it has wound the clock back to 1 January 1994. The resource implications are mind-boggling; the chances of workable outcomes are negligible. This is a system designed to fail.Beyond John Howard's election agenda, beyond the next election, more than anything the legislative and political package before us today will deliver uncertainty to all stakeholders. There will be ongoing uncertainty of title, uncertainty of rights, uncertainty of laws and uncertainty over business and livelihoods. We are left with the prospect of years of endless litigation, and we will see years of social division. John Howard will have brought this on Australians simply because he could not bring himself to include native title holders in the resolution process. (Extension of time granted)In recent days we have seen the Prime Minister claiming to have delivered on his promise at Longreach to provide certainty to the assembled pastoralists and other land users. The irony of this situation is that, in denying natural justice to the indigenous people of this country, John Howard has also broken his solemn commitment to that constituency—the miners, the farmers, the pasto ralists. These people will not forgive him when this package fails to deliver certainty and workability to land title. They demanded of him a system which would provide a sure basis for their legitimate use of the land, and this package fails utterly because it has not been reached with the people recognised in common law as the holders of native title.As we have said before, this debate does have international significance; it has ramifications for Australia's standing in the international community. We will not stand by and see Australia's reputation being sullied on race issues. We will not be silenced as Australia risks losing its standing as an advocate for racial tolerance and indigenous rights. We will not be silent if Howard government policies see us becoming an international pariah on these issues.But it is not just an issue of our international standing. This bill will determine the way that Australia treats its indigenous people. This bill may, on the face of it, be a bill about land management and a new layer of land title which the High Court recognised in the Mabo decision. But at the heart of this bill is a moral issue. Do we turn our backs on our indigenous people? Do we insult them by meekly acceding to this package that is before the Senate without demur or insult them further by legitimising this denial of natural justice? Do we wind the clock back to prior to 1967 in out treatment of Aboriginal and Torres Strait Islander people and say, `For a few brief years you had native title, but now we will give you bucket loads of extinguishment'?Are we to be treated to the sight of any base and desperate politician claiming in the forthcoming election campaign that John Howard and Tim Fischer have delivered bucket loads of extinguishment for the benefit of miners or pastoralists? There are no guarantees that that will not happen. And it will be to the shame of this government if it does.I just want to say this in conclusion: the opposition in the Senate refuses to allow Australia to go down this path without placing before the Australian people the only feasible alternative—that is, where the government of this country holds faith and holds goodwill with all parties involved in this fundamental issue. In this deal, there is a most significant party missing: Australia's indigenous people, the native title holders themselves. I can assure the Senate that Labor remains committed to both a moral and an inclusive solution, achieved by regaining the trust of all parties.13:40:004961Harradine, Sen BrianSenator HARRADINE6H4TASIND00—Since the introduction of the Native Title Amendment Bill, I have been completely committed to an honourable, fair, just and workable outcome which will acknowledge and protect the common law native title rights of indigenous Australians and provide fairness and certainty to farmers and miners. The amendments before us form the basis for that outcome. The passage by the Senate of the amended bill will avert the divisive double dissolution race based election in which I firmly believe blind prejudice, intolerance and hatred would reign. It provides us with the opportunity to build a national consensus over native title that will help to heal divisions and to build reconciliation.Already, miners, farmers and state governments have indicated their assent—albeit reluctantly—to the amended bill and their willingness to work with the amended Native Title Act. This is a remarkable achievement given the opposition which some of these stakeholders had to native title after Mabo, not to mention after the Wik decision. Some indigenous leaders have also stated that they are comfortable with the results of my efforts over the past fortnight. ATSIC's chairman, Mr Gatjil Djerrkura, is reported in the West Australian of last Saturday as saying publicly:"I generally welcome what has been reached and I think it has been reached, particularly from Brian Harradine's point of view, with good intentions," . . . "What he has done is to find some means whereby the whole debate can move on. It has been a stalemate for quite some time and it is time we made progress, and I think it has given us a parameter to make progress."Of course, he and others remain critical of the bill as a whole. I think the Labor Party should answer his criticism because much of that criticism is directed at the statutory extin guishment of native title, which is effected by the validation provisions of this bill.I understand the disappointment of indigenous people that, once again, their rights are to be diminished in order to overcome a problem not of their making, particularly in circumstances where some state governments—including those of former Premier Goss, the former Labor Premier of Queensland, and former Premier Borbidge—paid little regard to the processes of the Native Title Act when granting interests in land. The validation provisions have, from the outset, had the support of the opposition. In that particular respect, my vote did not count. Where, however, my vote has counted, has been decisive, I have been vigilant to ensure there would be no legislative extinguishment of native title rights and interests and that appropriate procedural rights would remain in place to protect those rights and interests.I challenge anybody to say where I have failed. Therefore, I have insisted that there be amendments which ensure that there can be no extinguishment of native title by state governments granting title to their own instrumentalities. The question that Wik did not answer—namely, what happens to native title once the pastoral leases expire—is left to be determined by the common law.In December 1997 and again in April this year, the Prime Minister (Mr Howard) identified four sticking points between the Senate and the government: the sunset clause; the registration test; the relationship between the Racial Discrimination Act and the Native Title Act; and the right to negotiate on pastoral leases. As a result of my negotiation with the government over the past fortnight, I have been able to ensure the preservation of indigenous rights in respect of all those four sticking points.There will be no sunset clause. The registration test is sometimes called the threshold test. In April, I moved with the support of the Labor Party an amendment to the government's registration test to ensure that the children of the stolen generation and victims of locked gates practices have their native title registered in order to obtain the benefit of the right to negotiate. The amendment was defeated by the combined vote of the government, the Australian Democrats and the Greens. The spirit of that amendment is included in these proposals. It is a nonsense to say, as Senator Faulkner says, that it will not be effective. He says that it is going before the costly procedure in the Federal Court.The problem with this debate is that very few parliamentarians and members of the press or public know the details. Senator Faulkner should know that the matter is already before the Federal Court. All that is required by the representatives of the group is to have a notice of motion that the matter be dealt with urgently in the circumstances described. This is a vast improvement. It is a fair and just result for the `stolen generation' and the victims of the locked gates syndrome.People have suggested that I have obliterated the claims with regard to the spiritual connection. The fact is that native title claimants may continue to make and pursue their claims before the Federal Court on the basis of spiritual attachment to the land. I have never contemplated watering that down.There is much more that I could say about the native title threshold test provisions in these amendments and this bill. I believe, as provided now, that this will break the log jam and allow genuine native title claimants to have their interests and rights registered. It will get rid of a lot of the problems that are of concern not only to the miners and pastoralists but also to indigenous Australians.In September 1997, the Senate amended section 7 of the Native Title Act to ensure that the act was read and construed subject to the Racial Discrimination Act. In April, the Senate, on the opposition's motion, reaffirmed its position but added the explanatory note to the section to allay fears that this provision could be used to bust open sections of the Native Title Act, thereby causing uncertainty. The government has now accepted the amendment and has elevated the explanatory note to a subsection. The comments that have been made by Senator Bolkus regarding that are ill-informed. I hope that we hear better from that source during the rest of this debate.The government has endeavoured to justify its position on the right to negotiate on pastoral leases by arguing that there should be equality of treatment between native title holders and registered claimants on the one hand and pastoral lease holders on the other. I have always insisted that true equality of treatment requires that the unique nature of native title be taken into account when governments are considering whether mining should be permitted on pastoral leases. The interests of the pastoralists and native title holders are often very different. Formal equality, therefore, is not sufficient. There must be essential equality. This principle has been achieved in new section 43A.By the way, I do not know who has said it, but people have been saying, as though surprised, that we are setting up a state scheme. Have they not read the Native Title Act? There is a state scheme envisaged there. We are trying to improve that slack state scheme. And how will we do it? I am proposing, and the government has accepted, that that state scheme should observe certain strict criteria. Native title holders and claimants must have the right to be notified of proposed mining. They will have the right to object to the mining proposal in so far as it affects their native title rights and interests.Mining companies and state governments will be required to consult with the native title holders and claimants about ways of minimising the impact of mining on native title rights and interests. There will be provision for mediation. In the event that an agreement cannot be reached, the objection will be heard by an independent person or body. The determination of that independent person or body can be overruled in the interests of the state or territory only after the minister for indigenous affairs has been consulted and those consultations have been taken into account. Should the mining go ahead, compensation will be provided for the effect of mining on native title interests, and that compensation must be determined by an independent person or body.The relevant decisions are all subject to judicial review. State schemes must, of course, then be given the tick. They must come to the federal Minister for Aboriginal and Torres Strait Islander Affairs and be given the tick. The tick has to be in the form of a legislative instrument. Guess who the legislative instrument comes before? It comes before this Senate. If we do not like the standards that have been established, then we disallow the instrument and we go back to the right to negotiate provisions. The right to negotiate provisions in the 1993 act have not been abolished.In April 1997, the National Indigenous Working Group published its position paper `Coexistence—Negotiation and Certainty' in which it set out its key principles. The key principles are:. Respect for property rights of titleholders on a non-discriminatory basis. The principles of non-discrimination, as set out in the Racial Discrimination Act 1975, must be respected. No extinguishment of native title without informed consent of native titleholders. Continuing protection of native title under the Native Title Act. No de facto extinguishment of native title by. unreasonable threshold test for the acceptance of claims. minimisation of native title rights through codification. `physical connection' tests. imposition of sunset clauses on claims. precluding towns, cities and waterways from claims or the right to negotiate process. Native Titleholders have a right a negotiate over development on native title land.Over the past nine months, while the bill has been before the parliament, I have always had these principles at the forefront of my mind, and I believe that the package of amendments which has emerged over the past fortnight reflects this.All in all, the government has now accepted some 314 amendments to the original bill introduced into the House of Representatives in September last year. The purpose and effect of the bill have been radically altered. The hard work of drafting amendments and persuading the government to accept them has been a joint effort conducted over many months. At some stage I will personally acknowledge the assistance of a lot of people in this process.My legal advisers had numerous discussions not only with the government's lawyers but also with those of the opposition and the National Indigenous Working Group. The opposition should be able to recognise much of their handiwork in the amendments that I put forward and which have been accepted by the government. It is a matter of deep regret to me that, despite all those efforts, the opposition considers itself unable at this time to accept and support the amended bill, for the government has indeed moved a long way from its original position and must be commended for that. (Extension of time granted)Before I conclude I would like to say something about the process concerning the negotiations between the government and me over the past fortnight. Many people have expressed their concern that indigenous representatives were not part of those negotiations. I, too, was somewhat concerned that indigenous leaders were not included in the outcome meetings between the government and representatives of the farmers and miners. However, I am not able to dictate to the government to whom it should speak or not speak.I certainly met with indigenous leaders and members of the Wik people. It is true that I could not advise them as to the state of the negotiations. But I listened to their advice and many of the amendments which I persuaded the government to accept are the product of discussions in December and April between my legal advisers and the lawyers for the National Indigenous Working Group. My position in April was well known to the indigenous leadership and their analysis of my recent actions will show that those attitudes and principles have not changed.We have an opportunity to move forward from the bitterness which has divided the nation over this matter over many years. The bill, as amended, is an honourable, just and workable bill and does not contain extinguishment other than the extinguishment that was agreed to by the Labor Party.The comment that was made by Senator Bolkus—and I hope his comments improve as this debate goes on—indicates that he believes that extinguishment is involved in the amendments relating to future acts and primary production because of what I have done on primary production. The fact of the matter is that that criticism is simply misconceived. The non-extinguishment principle applies for the whole of subdivision G—`Future acts and primary production'.If we give the new, amended act a chance to work, I am confident that, in time, indigenous and non-indigenous, city and country, can be reconciled on this issue. The community's recognition of native title after 200 years is not the panacea which some people believe it to be; nor is it the demon that others have tended to characterise it. It is but one aspect—albeit a very crucial and important aspect—of the ongoing process of reconciliation which we must continue to pursue with a sense of justice and fairness. I believe that, with these amendments to the Native Title Act, we can put in place a firm foundation for the future.Progress reported.Ministerial Arrangements49644964Hill, Sen RobertSenator HILLBH4SALPEnvironment10—by leave—I inform the Senate that Senator John Herron, the Minister for Aboriginal and Torres Strait Islander Affairs, will be absent from the Senate chamber for question time today. He is in Broome presenting the awards to the National Aboriginal and Islander Day Observation Committee. In his absence, Senator Newman will take questions relating to the portfolio of health and family affairs, and Senator Minchin will take questions relating to the portfolio of Aboriginal and Torres Strait Islander affairs.I also inform the Senate that Senator Rod Kemp, the Assistant Treasurer, will be absent from the Senate chamber for question time from today until Thursday.4J4SCHACHTSenator Schacht—Where has he gone?BH4Hill, Sen RobertSenator HILL—I am about to tell you. Senator Kemp is in Fiji attending meetings of the forum of economic ministers. In his absence, I will take questions relating to the portfolio of treasury and finance.Questions Without Notice496449644964Schacht, Sen ChrisSenator SCHACHT4J4SAALP00—My question is addressed to the Minister for Communications, the Information Economy and the Arts. Can the minister confirm that, under the so-called customer service guarantee, a fully privatised Telstra would have up to six months to provide a telephone service to communities with a population of between 200 and 2,500 people, and up to a year if the population is below 200? Can the minister further confirm that, if such a community is close to available infrastructure, a telephone service will be provided in eight weeks? How does the minister explain why, according to the member for Dawson, Telstra is unable to identify which communities in her electorate fall into the category of `close to available infrastructure'? What value is a customer service guarantee to those in rural and regional areas when Telstra itself is unable to interpret what the guarantee actually means?4964Alston, Sen RichardSenator ALSTONLD4VICLPCommunications, the Information Economy and the Arts10—I do not think Telstra has any difficulty in understanding the customer service guarantee, perhaps Senator Schacht does. The customer service guarantee is designed to ensure that Telstra and any other carriers, for that matter, who provide services in metropolitan, rural and remote areas provide them as they ought to. There are certain allowances made for distance—for example, for fault repairs it is one working day in metropolitan areas, two working days in rural areas and three working days in remote areas. To the extent that Telstra does not measure up to that standard—you will recall I told the Senate only a few days ago that, in a press release put out on 31 March this year, Telstra made it clear that it could meet the customer service guarantee levels. These are historic in Australia. You did nothing about it. For 13 long years you could not have given a damn about the bush.We are the first government that has been prepared to ensure that either people get their services installed or fixed on time or there is some compensation payable under the customer service guarantee. When it comes to installations of services in those areas which are classified as remote, Telstra previously had 27 months in which to install those services. We take the view that that is too long and I think Telstra acknowledges that, as time moves on and new technologies become available, it is appropriate and certainly within their capability to reduce that quite significantly. So it is not a part of the customer service guarantee—I know you have only a superficial interest in these policy issues as opposed to politics—but it is actually part of the universal service plan that Telstra signs up to with the federal government.4J4SCHACHTSenator Schacht—Doesn't Mrs Kelly understand it—the member for Dawson?LD4Senator ALSTON—Well you clearly don't because you trotted it out. You did not mention Mrs Kelly's name in your question. If you did, I missed it. I thought this was all your own work. If you think that it is a matter of my being asked a question by the National Party, I can assure you that you can safely leave that—5K4FAULKNER Senator Faulkner—Yes, you did mention it actually.LD4Senator ALSTON—Okay, maybe I did. But it can safely be left to our party room. If you are simply wanting to raise questions on behalf of the National Party, I can assure you they are much more capable and competent in that regard than you are. If you want to ask your own question, then I would have thought you have an obligation to get it right.The universal service plan, which is a document that the carrier signs off with the government, is the one that reduces those connection times. From memory, I think there are some 1,065 people who are currently on hold in that category. A number of those people already get alternative satellite handsets made available to them in the interim. So that is a dramatic improvement. You had it at 27 months; we have it down to 12. By anyone's standards that is a very significant improvement. But it does not have anything to do with the customer service guarantee, which is more to do with repairs and installations and doing it either on time or within the periods prescribed. If Senator Schacht wants another tutorial, I am more than happy to send some material around to him.4965Schacht, Sen ChrisSenator SCHACHT4J4SAALP00—Madam President, I ask a supplementary question. Minister, how are you going to guarantee a higher standard and quality of service to rural and regional areas under a fully privatised Telstra when the standard and quality of service has already fallen under a partially privatised Telstra, as shown and demonstrated in the ACA service report for the quarter ended March of this year?4965Alston, Sen RichardSenator ALSTONLD4VICLPCommunications, the Information Economy and the Arts10—You had a big sleep in on Sunday morning, did you, so you didn't see Senator Harradine. He made it very plain that some of these difficulties arise as a result of decisions made by Mr Beazley when he was the minister for communications as long ago as 1991. They have absolutely nothing to do with changes in ownership. As I have said to you time and again, in the United States where the carriers have always been privately owned, they have had a universal service obligation; they have imposed standards; and they have had of all sorts of consumer safeguards which are legislated.We are committed to retaining those. Why won't you give the same commitment? Why won't you get out there and guarantee that all those safeguards will remain in place in the Telecommunications Act, totally unaffected by any change in ownership? You won't, because you reserve your right to change these things, don't you? You want to weaken those services. You do not want to protect consumers. If you did, you would join us in a bipartisan commitment to ensure that the Telecommunications Act remains intact. (Time expired)49654965Tierney, Sen JohnSenator TIERNEYO15NSWLP10—My question is to the Minister for Communications, the Information Economy and the Arts, Senator Alston. It is another chance for Senator Alston to deliver yet another tutorial to Senator Schacht. Minister, has your attention been drawn to an article today entitled, `Bushed by Telecom myths'? What does the article conclude about the impressive progress of regional telecommunications under the Howard government? Will the minister inform the Senate what action the Howard government has taken to improve telecommunications in regional Australia, and is there likely to be continued progress in this area?4966Alston, Sen RichardSenator ALSTONLD4VICLPCommunications, the Information Economy and the Arts10—It is a great success story. It is worth re-telling and I am delighted that Senator Tierney has given me the opportunity to do that. As a result of decisions which we have taken—and this is highlighted in the article—93.7 per cent of all households in regional Australia are connected to the telephone network. That is a higher percentage figure than in metropolitan areas. Customers in regional Australia pay the same access charges and local call charges as customers in metropolitan Australia.AW5CARRSenator Carr—That's not right.LD4Senator ALSTON—It is right. Ninety-two point five per cent is the capital city figure and it is 93.7 per cent in rural areas. If you want to join the tutorial, feel welcome, but I do not think you would be quite up to it.Regional areas in Australia have better connection to the information superhighway than their counterparts in countries like the US and Canada, with over 93 per cent of Australians having access to 64 kilobit ISDN services, rising to 96 per cent by the end of this year, compared with 80 per cent in the US and 70 per cent in Canada. In Australia, unlike in the US, Canada and New Zealand, the cost of ISDN services is the same in the bush as it is in the cities.Madam President, we, of course, introduced the customer service guarantee that this lot were never even prepared to contemplate. We introduced a price cap to ensure a weighted price average flows on to rural areas, so they get the benefit of any reduction in local call charges where there is not immediate competition.We have introduced a scheme to give the 17,000 people living in isolated areas comparable benefits to untimed local calls for key services. We introduced a $250 million regional telecommunications fund called Networking the Nation.4J4SCHACHTSenator Schacht—Over five years.LD4Senator ALSTON—Over five years, exactly. That is $50 million a year more than you were prepared to sign on for. You op posed it tooth and nail. You could not give a damn about the bush.Senator Schacht interjecting—LD4Senator ALSTON—Despite the fact that we are ideologically committed to opposing the sale of Telstra, you were not even prepared to give that commitment to the bush.Senator Schacht interjecting—10000PRESIDENTThe PRESIDENT—Senator Schacht, cease interjecting.LD4Senator ALSTON—Madam President, it is a great story to tell and it is very disappointing indeed to find people like Mr Beazley out there—4J4SCHACHTSenator Schacht—Why do most people disagree with you?10000PRESIDENTThe PRESIDENT—Senator Schacht, I call you to order.LD4Senator ALSTON—Tom Burton fingers your leader. Just read that. Everyone knows it. When he was in government, he privatised everything that moved. Anything that was a government business enterprise, he got out there and justified it. Here he is today saying that he was concerned that overseas telecommunications companies would gain a powerful share in Telstra.The fact is that the bill which will be debated later this week says that Telstra will be subject to a five per cent limit on individual foreign ownership. That is precisely why not a single telecommunications carrier from offshore bought into the sale of the first third, because they cannot get a strategic shareholding. They have to be a passive investor and they were not interested in doing it. The retail investors and institutions took it up in droves, but none of the foreign telcos did, because our act did not allow them to take it up in any meaningful sense.This new bill will do precisely the same. But it does not stop your Hansonite leader getting out there and belting up on this scare campaign which is absolutely disgraceful. Look at what a fool Gareth made of himself again on Meet the Press! How you tolerate that I do not know. I suppose it is because you are not interested in policy and you do not see these things. But, if you do face up to the fact that you have a shadow Treasurer who is completely out of his depth and a leader who is running these sorts of scare campaigns to try to distract people from the fact that this very bill imposes a five per cent maximum limit, then you ought to be absolutely ashamed of yourselves, and you are going nowhere at the next election.10000PRESIDENTThe PRESIDENT—Senator Alston, you ought not to refer to the shadow Treasurer by his given name and you ought not to be debating the content of the bill which is on the Notice Paper . The topic may be raised, but not the bill.49674967Mackay, Sen SueSenator MACKAY9L6TASALP00—My question is to Senator Alston, the Minister for Communications, the Information Economy and the Arts. Does the minister recall my raising with him earlier this year Telstra's projections that full-time staffing in Tasmania will drop from 1,500 to around 1,340 by 30 June? Given that the statement which the minister tabled on 7 April failed to answer the question I put to him, particularly with regard to the promised 30 ISDN positions, I ask again: does the minister stand by his commitment to create an extra 170 jobs in Tasmania?4967Alston, Sen RichardSenator ALSTONLD4VICLPCommunications, the Information Economy and the Arts10—I do not know; maybe it is deja vu all over again. I have a vague recollection of you asking me the question, but I have a very clear recollection of the answer. And the answer is, firstly, it was not my commitment; it was Telstra's commitment.UNKNOWNOpposition senatorsOpposition senators—Ha, ha!LD4Senator ALSTON—Exactly, and you laughed the same way last time. That is why I remember it so well. I knew exactly what your reaction would be. You think you can serve up a question, irrespective of the facts, and when you are given the facts, you laugh at them. That is just a starting point. The fact is that Telstra gave that figure. I can recall going back and having a look after you asked that question. The fact is that Telstra is meeting its commitments.Senator Mackay interjecting—LD4Senator ALSTON—You might not like to believe it, but the fact is that they are also in the business of ensuring that there are contractors doing that work as well. There are people out there providing the services. If you are interested in the bottom line—which I know you are not because you are more interested in pushing a union line—you ought to be concerned about the fact that people in rural areas are getting the services that they deserve and, as a result of decisions like that made by Telstra, Tasmania is making real progress.4J4SCHACHTSenator Schacht—Losing jobsLD4Senator ALSTON—Because Telstra loses a job, you say, `Shock, horror! Isn't that bad?' The fact is that that work still has to be done by someone else. In most instances, it is being done by non-Telstra employees, in other words, non-unionists. That is why you are so annoyed about it. That is why the people who call the shots say to you, `Get up, feign outrage and make it clear that you think this is a bad deal', but when the communications sector is growing at 14 per cent a year—UI4RAYSenator Robert Ray—I raise a point of order. Madam President, Senator Alston has breached your more recent ruling on the use of the word `you' at least 10 to 12 times in this answer, which I think is a record for anyone. You might like to indicate to the minister that he should address you and use the proper forms of the Senate.10000PRESIDENTThe PRESIDENT—Senator Alston, I remind you of the standing orders in that respect.UW4CRANESenator Crane—On the point of order: Madam President, if you are going to rule on Senator Ray's point of order could I also ask you to rule on the asking of the question? The asker of the question quite clearly said, `I ask the minister,' when in fact she should be asking it in a way which says, `Madam President, could the minister explain?'LD4Senator ALSTON—Either Senator Ray is very slow on the uptake and it takes him a long time to get to his feet—in other words, after 12 instances—or he really does not think it is a major point; he just thought it was about time he got up and protected Senator Mackay. I can understand the latter.As I was in the process of saying, the telecommunications sector has grown by 14 per cent in the last year. It may have been even more in the last year; it was certainly close to 14 per cent the year before.9L6MACKAYSenator Mackay—Not in Tasmania, it isn't.4J4SCHACHTSenator Schacht—Not in Tassie. How many jobs went to Tasmania? Tell us how many jobs?LD4Senator ALSTON—That is because this is a growth sector.Senator Carr interjecting—LD4Senator ALSTON—The fact that Telstra might lose a few jobs—10000PRESIDENTThe PRESIDENT—Order! Senator Alston, just a moment. Senators on my left will cease interjecting. I have been very tolerant so far in question time but there are two of you who have been interjecting persistently. N26ABETZSenator Abetz—Name them!10000PRESIDENTThe PRESIDENT—I could name you.LD4Senator ALSTON—The fact that Telstra might be shedding some jobs in some areas as a result of the competitive pressures that were introduced by Mr Beazley back in 1991 when he opened up this market to competition, does not detract from the fact that those services still need to be provided and they are being provided—if not by Telstra then by other players. The overall result is a very good one for Australia. When you have the communications sector growing at about three times—or more—the rate of GDP growth in this country, you have a very good outcome, except for those who are simply concerned to run the union line on all these issues. If Senator Mackay wants more information about the state of Tasmania, I am happy to provide it to her in due course.4968Mackay, Sen SueSenator MACKAY9L6TASALP00—Madam President, I ask a supplementary question. Minister, I still have not had an answer to the question which was, do you stand by your commitment to create an extra 170 jobs—UNKNOWNGovernment senatorsGovernment senators—Point of order!10000PRESIDENTThe PRESIDENT—Order! The question should be addressed through the chair, Senator.9L6Senator MACKAY—Does the minister stand by his commitment to create an additional 170 jobs in Tasmania, including the 30 jobs promised for the ISDN positions? Is that the case? Isn't it the case that the minister will not deliver on his commitment to Tasmania because he knows that the full privatisation of Telstra will lead to more massive cuts to Telstra employment in Tasmania, with its subsequent impact on services to the community? I would appreciate an answer from the minister.4968Alston, Sen RichardSenator ALSTONLD4VICLPCommunications, the Information Economy and the Arts10—As I have said time and again, privatisation will not make any difference. Change in ownership will not affect the way services are delivered. That is why we have a raft of consumer protection measures in separate legislation to protect customers. That is what we are interested in protecting—customers. You are interested in protecting unions. We have very different agendas. I have said it once today but I will say it again: that was Telstra's commitment, not mine. Telstra is in a position to give undertakings; it gave those undertakings in good faith and it will honour those undertakings. Madam President, irrespective, there is a series of customer protection arrangements that we have put into legislation that this lot opposite are simply not interested in endorsing. They have opposed every initiative we have taken to try to assist people in rural areas and here we have again yet another Labor senator parroting the union line. (Time expired)49684968Synon, Sen KarenSenator SYNONFQ6VICLP10—My question is to the leader of the government, Senator Hill.AW5CARRSenator Carr—Here we go.10000PRESIDENTThe PRESIDENT—Senator Carr, behave!FQ6Senator SYNON—Thank you, Madam President. The coalition government has consistently said that Australia needs a new, fairer taxation system. Has the minister's attention been drawn to the Labor Party's admission that under a future Labor government some wholesale sales taxes would go up? And will the minister outline the inequitable nature of Australia's taxation system and how the government's record on tax compares with the previous Labor government's?4969Hill, Sen RobertSenator HILLBH4SALPEnvironment10—I welcome the question from Senator Synon, and her recognition that Australia needs a new, fairer taxation system. There is a clear and stark contrast between the coalition government and the ALP on taxation matters. We can now compare the record of the Howard government with the record of the previous Labor government. It was the previous Labor government which promised before 1993 that taxation would not rise. I guess we can all remember Mr Keating's comment, `taxation will not rise.' Yet what did we get in the 1993 budget? Petrol tax increased by 7c; tobacco excise increased by 15 per cent; wholesale sales tax increased across the board; the 20 per cent rate that applied to soap, toothpaste and soft drinks was increased to 32 per cent; and taxes on whitegoods and other electrical appliances increased. Who would forget the l-a-w tax cuts that were promised by Labor and never delivered?Labor's taxation dishonesty continued after 1995. Sales tax on cars increased from 15 per cent to 22 per cent; the Medicare levy increased; there were increased pharmaceutical charges; the provisional uplift factor, which particularly hits small businesses, was increased. In 1995-96 alone there was a 9.3 per cent real increase in tax take. This is Labor's approach to taxation. Labor is addicted to taxes. Labor has no alternative. If Labor was not prepared to tackle expenditure, its only alternatives were borrowing and taxation, and it choose both.The same hints from Labor were out there again last weekend—this time from Mr Evans, their Treasury spokesman. When he was asked about increases in wholesale sales tax he said, `Maybe, maybe not. But there are some anomalies that need to be looked at.' He was then asked, `Would there be net increases?' He said, `We would be aiming at no net increases.' Like Mr Beazley, his leader, today when he was asked much the same question—would a Labor government increase wholesale sales taxes? What did he say? He said, `No, I wouldn't think so.'They have been in opposition for 2½ years and they still don't know whether they intend to increase taxes. But we do; all Australians know that they will increase taxes because they have always increased taxes in the past. They will do it again because they will not tackle expenditure. They will not take hard decisions in government on expenditure. They therefore have to borrow more, which they did in spades, and they have to tax more, which they did also.The contrast is there with the coalition government: 2½ years in government—no increases in income tax, no increases in capital gains tax and no new wholesale sales taxes. In other words, because the coalition government was prepared to take the hard decisions on expenditure, it has not needed to increase taxes. It took another path that has allowed taxation to stay low, which gives Australians a greater incentive to invest, to grow the economy and to provide jobs. It is therefore no accident that jobs are increasing and that unemployment is coming down under the coalition government because it has been prepared to hold down taxation—in contrast with Labor, which has never been prepared to do so.So the choice at the next election will be stark, as the history is stark: vote Labor and you get higher taxes; vote the coalition and you don't get higher taxes. The coalition says that there are other ways and it has demonstrated them in practice. (Time expired)4969Synon, Sen KarenSenator SYNONFQ6VICLP10—Madam President, I ask a supplementary question. Will the minister outline how important tax reform is to Australia? Is he aware of any alternative proposals?RF4COOKSenator Cook—Tell us about yours.10000PRESIDENTThe PRESIDENT—Senator Cook, you interjected persistently during that answer. I am sure you are aware that it is disorderly. If I conclude that your behaviour is wilful, consequences may flow.4969Hill, Sen RobertSenator HILLBH4SALPEnvironment10—When the Labor Party talks about tax reform, it is talking about putting up taxes, introducing new taxes—RF4COOKSenator Cook—Not true.BH4Senator HILL—and raising the level of those taxes.RF4COOKSenator Cook—Not true.10000PRESIDENTThe PRESIDENT—Senator Cook, you are warned.BH4Senator HILL—That is the way they have always operated. We recognise, as most Australians recognise, that within the tax system and without increasing net taxation there is need for change. There is need to restore fairness. There is need to reduce personal income tax and assist families. There is need to compensate those in special need. But all of this can be achieved without increasing the overall level of taxation; in other words, without taking the easy Labor Party alternative of increasing taxes.RF4COOKSenator Cook—I raise a point of order, Madam President. My point of order is that the Labor Party has said and done nothing at all to justify the allegation by the minister that we are proposing to increase taxes. He is misleading the Senate. My point of order is that you should call him to order and make him tell the truth for a change.10000PRESIDENTThe PRESIDENT—There is no point of order. You are debating the issue, and there is an appropriate time to debate it. Senator Hill, you have three seconds.BH4Senator HILL—The taxation system can be reformed without net increases, and that is the commitment of this coalition government.49704970Denman, Sen KaySenator DENMANFY5TASALP00—My question is to Senator Alston, the Minister for Communications, the Information Economy and the Arts. Can the minister confirm that Telstra is currently undertaking a review of duplicate facilities within the Tasmania-Victoria region? Given that some 179 Telstra jobs have been axed in Tasmania since February 1997, can the minister give a guarantee—an iron-clad guarantee, as opposed to the flexible guarantee he gave Tasmania at the time of the one-third privatisation—that none of the 45 Hobart work management centre jobs, none of the 20 Launceston provisioning/assignment centre jobs and none of the 15 Hobart de sign/estimating centre jobs will be lost as a result of this review?4970Alston, Sen RichardSenator ALSTONLD4VICLPCommunications, the Information Economy and the Arts10—It is absolutely pathetic that the Labor Party should now be running around, seeking cast iron guarantees from players that they encouraged to become efficient and that they allowed to be exposed to competition for the first time all those years ago when Mr Beazley was out there, privatising everything that moved. I would have thought that they would have just stopped for a moment to see what Tom Burton has said, which is precisely what, of course, Kenneth Davidson has said before:In government, Mr Beazley had very definite views about the government partially owning anything. Beazley would tell anyone who would listen—10000PRESIDENTThe PRESIDENT—`Mr Beazley', Senator.LD4Senator ALSTON—No, I am quoting from the article, Madam President.10000PRESIDENTThe PRESIDENT—Thank you.LD4Senator ALSTON—He goes on:Beazley now wants the national carrier to remain in ownership limbo. It is the worst of all worlds. As Beazley knows only too well, leaving it in the doghouse of partial government-private ownership will only see it wallow in indecision and compromise.Putting poor old Senator Denman up to something like this is really a disgrace, because you are the crowd that went around saying you would not privatise the Commonwealth Bank, and you did; you were very keen to—10000PRESIDENTThe PRESIDENT—Senator Alston, direct your remarks to the chair.LD4Senator ALSTON—Madam President, I acknowledge that the opposition parties are the ones that got the whole ball rolling on privatisation. They are now seeking all sorts of dishonest commitments from government, when they were the ones who did not give a single commitment and they will not even support us on the customer service guarantee. I have already spelt out that in legislation there will be a maximum of five per cent for strategic ownership. Will they support that? No, they will not. In other words, they want to keep all their options open.We know what Senator Schacht did only last week; he is now prepared to countenance a sell-down to 51 per cent. In other words, they have gone back to where they were before Hobart. That is what this is all about. This is being utterly opportunistic, simply ignoring the fact that our customer service guarantee and a whole range of other changes will be very good news for all Australians—particularly Tasmanians, Senator Denman. If you noticed it today, Senator Newman and Mr Fahey put out a press release announcing a pilot program of a new Commonwealth information call centre in Launceston; in other words, more work—more jobs, that is what you are concerned about. That is why Ansett has a call centre in Launceston: more jobs.The competition that this other crowd introduced some years ago has resulted in a very significant expansion of jobs in the communications sector, and we are concerned also to ensure that customers are fully protected as well. That is why we have got all those protections in legislation. Why won't you support us in making sure that they stay in place forever?4971Denman, Sen KaySenator DENMANFY5TASALP00—Madam President, I ask a supplementary question. Is the minister aware that Telstra management in Tasmania have told the workers in the centres I referred to that they will be made redundant at the conclusion of the review? What is the purpose of having a review if the conclusions are already known?4971Alston, Sen RichardSenator ALSTONLD4VICLPCommunications, the Information Economy and the Arts10—I do not know what review we are talking about, but the preposterous suggestion that something should be retailed third-hand and trotted out in the Senate as though it is gospel because some unionist somewhere told you what they understood to be a message conveyed by management is simply not good enough. Senator Denham, you should not let yourself be put up to ask these questions.10000PRESIDENTThe PRESIDENT—Senator, the answer should be directed to the chair.LD4Senator ALSTON—Madam President, Senator Denham may be one of the very few on that side of the chamber who are not rolled gold unionists, but she has an obligation to think for herself. She ought to get out there and check the facts, not retail a bit of scuttlebutt, and look closely at the legislation. That is what this is all about: protecting customers and making sure that the communications sector is a growth area. Tom Burton is absolutely right. If you had your way, Telstra would be caught betwixt and between. You would have a great Australian company going backwards, all because of ideological opportunism. (Time expired)49714971Lees, Sen MegSenator LEES8U4SAAD00—My question is also to the Minister for Communications, the Information Economy and the Arts. I ask the minister, is it not the case that there is a direct conflict between his customer service guarantee and the responsibility of the directors to maximise profits for shareholders? Isn't it also the case that the real reason why services have declined substantially in rural areas is that some 3,000 jobs have been shed in rural Australia? Is it not the case that the fully privatised Telstra plans to shed a further 25,000 jobs over four years? So how can we improve services when there will be few, if any, people out there to deliver them?4971Alston, Sen RichardSenator ALSTONLD4VICLPCommunications, the Information Economy and the Arts10—Again, it is very sad when you only have a little piece of information and you try to slot it into your ideological predilections. You say that Telstra plans to cut 25,000 over four years. They announced about 2½ years ago that they were going to reduce their work force by 22,000 over three years. That process is two-thirds complete, and it has been achieved without any expression of angst even on the part of the unions. I have no doubt that this mob over here have been out there trying to whip them up, but they have not.Let me come to the much more important aspect of this whole debate. This is where people like the Democrats really have a lot to answer for. I know you do not want to understand economics, but let me put to you that back in 1991, when Telstra was corporatised—in fact, it was earlier than that—I remember the then Senator Gareth Evans put out a discussion paper about GBEs and it was made perfectly plain that Telstra would be expected to operate competitively and commercially. So the fact is that ever then, at least seven years ago, the directors of Telstra have had a legal obligation to ensure that that company is run commercially and in accordance with the Corporations Law of this land. There is no question at all that somehow suddenly they are going to be asked to be able to operate commercially. They were asked by the Labor government seven long years ago to operate commercially, and those directors could find themselves in gaol if they did anything to the contrary.The reason why that system can work is that, at the same time, you superimpose a raft of social commitments. You have a universal service obligation, you have price caps and you have licence conditions requiring roll-outs of ISDN capability. The customer service guarantee is simply the latest in a long line of legislative overlays. In other words, Telstra is required to operate commercially but subject to the overriding requirements imposed by the parliament to ensure that people in rural and remote areas get the benefits, even though it might not be commercial, and that they get them by a cross-subsidised system—in other words, an industry levy funded by all the other players.You know that as well as I do. Even they know it, Madam President. The reason why the Australian Democrats want to ignore that is that they want to play this silly little game of, oh, all of a sudden, with privatisation, the company will have to operate commercially. It is a lie, and you know it. They have always been required to operate commercially. Nothing whatsoever will change as a result of any change of ownership, just as nothing changed when we got the bill through a couple of years ago.9L6MACKAYSenator Mackay—How do you know?LD4Senator ALSTON—Because the obligations are precisely the same. The directors are required to look after the commercial interests of the shareholders to ensure that they get value for money, to ensure that the company is properly and efficiently operated. If we think that over and above that there are obligations that ought to be imposed on Telstra, or any other carrier for that matter, then we do that. We do it by legislation. We have done it time and again. You, of course, would bind them hand and foot to the point where they really could not operate commercially. But we do it in such a way that the company has gone from strength to strength while consumers can still be fully protected.That is the sensible model. That is why this Labor Party privatised every government business enterprise. You are only left with Australia Post and Telstra. We have given a cast-iron guarantee that Australia Post will not be privatised, and the only other company left in the game is Telstra. Mr Beazley was prepared to commit back in 1991 to Telstra being privatised. Oh yes, he was always prepared to make those sorts of promises. He has never gone into the lower house and denied that but instead sneaks around it with all sorts of weasel words. The fact is that Mr Beazley is Australia's greatest privatiser. (Time expired)4972Lees, Sen MegSenator LEES8U4SAAD00—Madam President, I ask a supplementary question. Minister, you still have the power to direct Telstra, although I ask you whether it is not the case you are trying to give that away. At least if we remain where we are we still have some force to insist. But I do remind you, through you, Madam President, of your words when you said that your customer service guarantee would ensure that `customer service levels are not only maintained, but enhanced'. This simply has not happened. If we move on and fully privatise and you change your customer service obligations again, isn't it more than likely that again Telstra will define them as narrowly as possible? Isn't the likely scenario that we, the taxpayers, will be picking up the cost of ensuring that adequate rural services go beyond the year 2000?4972Alston, Sen RichardSenator ALSTONLD4VICLPCommunications, the Information Economy and the Arts10—Of course it does not define the customer service guarantee, we do. The power to direct has been in the act since 1991. The Labor Party never used it, but if Senator Schacht got half a chance he would impose billions and billions of obligations on them to meet his own political agenda in marginal seats. That is not the way to go. The way to go is to ensure that those standards are in place. Telstra tell me that, since the last quarterly survey, the quality of service has risen quite significantly—4J4SCHACHTSenator Schacht—What!LD4Senator ALSTON—I am telling you. These are not published figures.UNKNOWNOpposition senatorsOpposition senators—Ha, ha.LD4Senator ALSTON—If the Labor Party wants to say Telstra is lying, so be it—but I am expected to take the word of Senator Denman of what some unionist said he heard at a management meeting recently. Madam President, I am telling you that Telstra tell me that, since that last quarterly survey came out, the standard of service has risen significantly in a number of areas. That report was to the end of March. It is now more than three months since that time. (Time expired)49734973Ray, Sen RobertSenator ROBERT RAYUI4VICALP00—My question is directed to Senator Hill, representing the Prime Minister. Can the minister confirm that, following a cabinet decision in August of last year, the Prime Minister issued a directive that no minister or members of their staff could buy Telstra shares within 90 days of the share offer? Did the Prime Minister write to all ministers setting out this prohibition? Can the minister confirm that this prohibition was deemed necessary to preclude any ministers taking advantage of any inside information that may have come from cabinet or other discussions?4973Hill, Sen RobertSenator HILLBH4SALPEnvironment10—I obviously do not report on cabinet determinations or advice given within cabinet, or even on the content of cabinet discussions. Certainly there was guidance, during the course of last year, in relation to the purchase of Telstra shares. I recall in particular the period leading up to the Telstra sale and the obvious need to take great care that there was no conflict of interest or, for your benefit, I will say perceived conflict of interest in relation to that, Senator Ray. There was some discussion about whether there should be, using my language, a `cooling-off period' thereafter. As I did not purchase them, and had no intention of purchasing them, I cannot remember the full details of that.4973Ray, Sen RobertSenator ROBERT RAYUI4VICALP00—I did not ask the leader to reveal cabinet discussions, nor would I ever. My question was simply: was there a cabinet decision? Did the Prime Minister write to ministers and was that passed on to their staff members? Could the minister take that part on notice and give us a quick response on that? While he is doing that, if that was the case he might also confirm, seeing that the stock market float started on 17 November, whether that prohibition went through for the three months—the 90 days—to mid-February.4973Hill, Sen RobertSenator HILLBH4SALPEnvironment10—I will take that on notice and see what I can provide.49734973Brown, Sen BobSenator BROWNQD4TASAG00—My question without notice is to the Minister representing the Attorney-General. Is it true that two protesters, after plea bargaining, have been ordered to pay $300 each in the Northern Territory courts this morning to the mining giant, ERA? If so, is this nothing more than blood money being paid to a greedy multinational corporation out of the pockets of impecunious but high principled Australians? Is the minister aware of a call by Northern Territory Police to involve the Federal Police in this contentious issue at Jabiluka? If so, will the minister give an assurance to the Senate that that involvement will be like Federal Police involvement in the Franklin River issue, where the Federal Police were brought in to investigate the extent of destruction—(Time expired)4973Vanstone, Sen AmandaSenator VANSTONE7E4SALPMinister for Justice10—I thank Senator Brown for his question. Senator, as good as the Attorney-General's Department are—and they are a good department—and as quick and efficient as they are, with the greatest respect, you are asking a lot to think that they would have a brief in here at lunchtime on something that apparently happened in the Northern Territory court this morning. It is understandable that the Attorney-General's Department does not have staff sitting and watching what is happening in every court around Australia. I will make some inquiries both as to what might have happened in the Northern Territory courts this morning and in relation to the second part of the question, namely whether there has been any request for involvement of Australian Federal Police.Before leaving it at that, I would add that the senator asked a question about blood money being paid to an international company from `impecunious' and `high principled' protesters. I simply make the point that this government has the view that the law is there for you whether you are impecunious or wealthy, and whether you are high principled or otherwise. They are not entitlements to break the law.4974Brown, Sen BobSenator BROWNQD4TASAG00—Madam President, I ask a supplementary question. I ask the honourable minister if she will confirm that Federal Police will not be involved in this matter unless, as in the Franklin campaign, it is to study the extent of the destructive activity of the bulldozers sent into a national treasure wilderness. Secondly, in response to that answer, is it the minister's view that peaceful protesters ought to be subject to the outrageous Northern Territory laws, which potentially leave them faced with a mandatory two weeks in jail and a potential sentence of seven years for nothing but protesting for what they think is for the benefit of the future of this country?4974Vanstone, Sen AmandaSenator VANSTONE7E4SALPMinister for Justice10—I already indicated to Senator Brown that I would make inquiries about any request for the use of the Australian Federal Police. They will only ever be used for proper purposes, I can give that assurance.The senator goes on and asks about my views on the Northern Territory legislation and its application to peaceful protesters. It is very clear to those who support the democratic process that the noise of protest, if you like, is the bell of freedom, and we should all welcome peaceful protest. The point that has to be remembered by peaceful protesters is that they must do so within the law. That just happens to be an inconvenience to some peaceful protesters, but that inconvenience is there. I welcome peaceful and lawful protest on any issue. We should be continually reminded of how lucky we are to live in a country where people can lawfully and peacefully protest. But that right to lawful and peaceful protest is called into question when people do not obey the law. (Time expired)49744974Carr, Sen KimSenator CARRAW5VICALP00—My question is to the Minister for Social Security, Senator Newman. How does the minister respond to the case of an unemployed 19-year-old, sharing a flat in Ballarat, who was given two days notice that her newstart allowance would cut out completely on 1 July as a result of the introduction of the youth allowance?LD4ALSTONSenator Alston—Madam President, I raise a point of order. This grubby little question time tactic has been tried on a number of occasions in this chamber over the last week, and I again invite you to rule that those questions are hypothetical unless the Senate is given at least a skerrick of evidence to suggest that they are actual. We have had nothing to date from any other questioner and it does not look like we are getting anything from Senator Carr to substantiate this question, either. If that is not the case then it should not be regarded as a genuine question.AW5Senator CARR—On the point of order, I have here a letter dated 30 June 1998 detailing the case I am putting to the minister at the moment.UNKNOWNGovernment senatorsGovernment senators—Table it.5K4FAULKNER Senator Faulkner—Madam President, on the same point of order, Senator Alston has taken this spurious point of order on a number of occasions. You have consistently ruled his point of order out of order as having no basis. I would suspect that if you were going to make a ruling you would be consistent with your previous ruling on this matter, and you would certainly wait until the conclusion of Senator Carr's question before you made such a ruling.10000PRESIDENTThe PRESIDENT—There is still time for Senator Carr to develop his question, certainly. Hypothetical matters must not be put to ministers and, if the minister feels that it is hypothetical, she does not deal with that part of it. But there may be other parts that she would want to deal with.AW5Senator CARR—What is the 19-year-old going to do to find the $60 a week for rent on her flat, the lease for which runs out in February 1999? Does the minister agree with the advice given to her by Centrelink in Ballarat, which was to go home to her town of Moonambel?4975Newman, Sen JocelynSenator NEWMANBE4TASLPSocial Security10—Sadly, this is the way the opposition operates; and quite improperly, in my view, if they are really serious.Opposition senators interjecting—BE4Senator NEWMAN—Madam President, this is a serious matter and I would hope that they would listen in silence.Opposition senators interjecting—10000PRESIDENTThe PRESIDENT—Order!BE4Senator NEWMAN—This is another occasion in a matter of days that the Senate has been presented with what appears to be the circumstances of a private individual, asking me for comment upon it.5K4FAULKNER Senator Faulkner—Have you ever had a look at what you did when you were in opposition, you hypocrite?10000PRESIDENTThe PRESIDENT—Order! Senator Faulkner, withdraw that.5K4FAULKNER Senator Faulkner—Madam President, I withdraw.BE4Senator NEWMAN—Last week, Senator Forshaw also raised a purported case of an individual. I asked him to get to my office and give me the details of that and I would investigate it. He did not do so, and so I had my office contact his office some days later to ask when I was going to get that information because it was very important that I checked it out. I have still not received that information.The shadow minister for social security has also been making claims about how some individual is going to be affected by the youth allowance but, once again, has not come to my office. I do warn honourable senators that there are people taking to the airwaves or, presumably, going to the opposition, who are not necessarily telling the full story.5K4FAULKNER Senator Faulkner—We want to warn people about you.10000PRESIDENTThe PRESIDENT—Senator Faulkner.BE4Senator NEWMAN—I know that the opposition would rather try to shout me down, as they are doing now, but the facts are that three media outlets in the last seven days have highlighted the situation of a family as being affected by the youth allowance. The information that was given to the public about that family was untrue; it was incorrect. I do not make any judgment about why it was, but certainly the information about family income was incorrect and the information about the family entitlements was also incorrect. If the honourable senator would like to give me a copy of that letter, I would be very happy to follow it up. But, in the circumstances I just outlined, I am not prepared to take at face value what people are saying about their circumstances until they are investigated by Centrelink.4975Carr, Sen KimSenator CARRAW5VICALP00—Madam President, I ask a supplementary question. I would draw to your attention, Minister, that this was a letter sent to Mr Michael Ronaldson, a copy of which has also been supplied to the opposition, dated 30 June. I trust that you will be able to take the matter up with your colleague, who should by now have advised you of the details of this letter. I go on and say that the opposition is not known for using the tactics that saw the Wright family, as used by Senator Vanstone in the past. I would ask, Minister: can you confirm the advice given by Centrelink that this young woman will have to continue to repay a $500 Centrelink approved loan at the rate of $38.50 a fortnight which previously had been taken out of her newstart allowance?4975Newman, Sen JocelynSenator NEWMANBE4TASLPSocial Security10—Perhaps I will have to re-emphasise for Senator Carr that Centrelink can give you information over the telephone or in person which may or may not be the definitive position. Has that person lodged a form? Has he or she received a determination from Centrelink? It is one thing for a young person to go to Centrelink, give an approximate estimation of their parents' income and fail to mention that there are any siblings who are dependant upon their parents. I will not accept that statement of alleged facts until I have the opportunity to have it checked out with Centrelink as to what information was given to Centrelink and as to whether that is a final determination. It is only on the basis of an application form, for which the decision can be appealed through the normal review process, that we can accept it. I am not prepared to; your colleagues have been playing games. Other people have been giving information that was not accurate and I am not prepared to accept your—(Time expired)49764976Payne, Sen MariseSenator PAYNEM56NSWLP10—My question is addressed to the Minister representing the Minister for Immigration and Multicultural Affairs. Given recent public discussion in Australia of immigration policy, and particularly the issue of the number of migrants that Australia should accept each year, will the minister inform the Senate of the government's approach to this issue of vital importance to all Australians? Will the minister also advise how this contrasts with the previous Labor government's record and with other views in the community on this issue.4976Vanstone, Sen AmandaSenator VANSTONE7E4SALPMinister for Justice10—I thank Senator Payne for the question. This government has very substantially reformed and repaired immigration policy since taking government in 1996, after 13 years of Labor. We have eliminated a number of rorts and abuses, such as sham marriages, abuse of legal process and failure to enforce compliance breaches in the immigration area. Very importantly, we have changed the balance of the intake to reflect the current needs of the Australian economy, giving much greater weight to migrants who are able to contribute to the Australian economy.Under Labor's policy, family reunion migrants outnumbered skilled migrants by roughly two to one. Under this government, that balance has changed very dramatically from two to one to fifty-fifty. That is, we have rebalanced the program, and skilled migrants now form about 50 per cent of our annual intake of migrants—and we believe that the community welcomes that change.This very positive approach to immigration policy is in stark contrast to the ragbag of nonsense policies that come out of David Oldfield's One Nation policies. Those policies—if one might refer to them as such—are an anathema to the overwhelming majority of Australians who recognise that Australia is a nation built on migration: we owe everything we have built to it, and our future depends on it. It is also a very stark contrast to the approach of Labor, which has consistently for many, many years cynically used immigration policy.Last week I reminded the Senate that the coalition parties, the parties on this side of the chamber, were the first to welcome Indo-Chinese refugees to Australia in significant numbers, and that Labor opposed our welcoming approach. Since that time, my attention has been drawn to what Mr Clyde Cameron has had to say about Mr Whitlam, the then Prime Minister, who apparently turned to his foreign affairs minister in the last months of the Labor government in 1975 and said, `I'm not having hundreds of'—`delete' or a few dots I had best put there—`Vietnamese balts coming into this country with their religious and political hatreds against us.' That is a clear indication of the sort of cynical attitude that Labor has always had to immigration policy.Labor has real form on immigration policy. Yesterday, former Senator Evans was asked a question on this issue—and he ducked for cover. He said, `I'm not going to be drawn on numbers.' He would just say that Labor was in favour of strong, continuing immigration—and that is it.So this is another area where Labor will hold a discussion after the election. They are not going to make decisions before that might let the electorate see what they are going to do; they are just going to have another discussion after the election. This is what Labor says they were going to do on native title—and thank heavens we have fixed that. That is what they are going to do to handle the Asian crisis; they are going to have a chat about it after the election. If we had not fixed the waterfront—RF4COOKSenator Cook—Madam President, I raise a point of order. The standing orders make it quite explicit that, in answering a question, a senator shall not debate the question. We had earlier today the spectacle of Senator Hill debating a question about what Labor might do, he asserting Labor shall do it. We now have another spectacle of another minister saying what Labor shall do. That is surely debating the question and, according to the standing orders, is thus out of order.10000PRESIDENTThe PRESIDENT—Debating is certainly out of order. But the minister, I think, is dealing with the question that was put to her and answering it. Senator Vanstone represents the area, Senator.7E4Senator VANSTONE—I do understand Senator Cook's embarrassment at the policy-free zone on the other side of the chamber; I clearly understand that—an absolute policy-free zone. Discussion after the election means back to the old practices of short, cynical manipulation; cronyism; the backroom deals and branch stacking that happened in relation to immigration policy over there—and you ought to know all about it. You do not have to read all about it; you can watch it on television—all the branchstacking in relation to ethnic groups that goes on in Victoria.Everyone needs to be reminded of what the Australian said in 1975: that Senator Bolkus's performance as Minister for Immigration—not here today—`falls short of the high standards reasonably expected of holders of ministerial office'. That is what you will go back to, if Australia were ever to re-elect a Labor government.49774977Collins, Sen JacintaSenator JACINTA COLLINSGB6VICALP00—My question is to the Minister representing the Minister for Employment, Education, Training and Youth Affairs. Can the minister confirm information provided by DEETYA that funding for job matching or FLEX 1, which was originally estimated to be $222 million, is now expected to total $183 million, and that funding for jobsearch training or FLEX 2, which was originally estimated to be $50 million, is now expected to total $37.7 million? Doesn't this mean that the government, at a time when it has failed to make any inroads at all into unemployment, is planning to cut a further $51.3 million from a budget for labour market programs which has already suffered a cut of $1.8 billion?4977Ellison, Sen ChrisSenator ELLISON9X5WALPSchools, Vocational Education and Training10—I am not aware of the figures that are alleged by Senator Collins. But I can tell the Senate that there is no intention to cut back in relation to the jobs network program that we have introduced. This is one of the greatest reforms that this country has seen. It is a reform involving over 300 organisations. It is not being cut back to just a few job agencies, as Senator Mackay alleges. We are providing job seekers in this country with a number of choices they have never had before. We are offering them more job sites to go to than before. There are now in the region of 1,500 job sites. In fact, our referrals for intensive assistance are now up to 134,000. That is way in excess of the 125,000 target we had for the end of June.This program is going very well. We have had reports from job providers that things are going well out there—but they just wish that the opposition would be a little more positive about this; they just wish that media reports would be a little more positive about this and look at those providers which are getting on and providing referrals for those people who need them.4977Collins, Sen JacintaSenator JACINTA COLLINSGB6VICALP00—Madam President, I ask a supplementary question. On the assumption that DEETYA will confirm to the minister what it has already told the Senate estimates committee in his presence, will the minister acknowledge that this decision to further cut labour market funding is about saving money not improving services? Minister, it is a bit difficult to be optimistic about a further cut of $51.3 million on top of $1.8 billion.4977Ellison, Sen ChrisSenator ELLISON9X5WALPSchools, Vocational Education and Training10—It is very difficult to answer any question on the assumption of anything. Again, it is another hypothetical question that the opposition is putting. What I can say is this: what this government is about is improved services which give job seekers in Australia a great advantage—from job matching, which was the former FLEX 1, right through to job intensive assistance. What we are on about is giving people choice and giving competition in the job provision marketplace to give those job seekers more opportunity and more success.49784978Allison, Sen LynSenator ALLISON1M6VICAD00—My question is directed to the Minister for the Environment. Is it the case that there is a federal police investigation under way in the minister's department at present because of alleged leaks to the Democrats? Who ordered the investigation? Was it the minister or was it the departmental secretary? Did the minister insist on this investigation to intimidate and punish his staff because he was fed up with being embarrassed? Wouldn't the minister rather have public servants who give frank and fearless advice than intimidated staff forced to help the government to cover up its assault on the environment?4978Hill, Sen RobertSenator HILLBH4SALPEnvironment10—Public servants have to obey the law as well.4978Allison, Sen LynSenator ALLISON1M6VICAD00—Madam President, I ask a supplementary question. Again I ask: who ordered the investigation? Was it the minister or the head of the department? Does this investigation not reflect badly on the minister's management of his department that his professional staff feel so compromised? Is it not the case that the minister spreads the rhetoric of protecting the environment but in reality decisions coming from the minister's department are more and more environmentally destructive? Is it not also the case that the staff morale in his department is at an all-time low? Hasn't the minister himself created the circumstances for leaks by making bad decisions, routinely evading questions, fudging public statements and generally treating questions in the parliament and in the media with contempt? Hasn't the minister created this environment of distrust? Isn't he reaping exactly what he has sown?4978Hill, Sen RobertSenator HILLBH4SALPEnvironment10—You could not push much more into a minute, I don't think.UW4CRANESenator Crane—Madam President, I raise a point of order. My understanding of the standing orders is that a supplementary has to come from the answer to the question that was asked initially. I cannot ascertain in any form how this question could relate at all—WP6LIGHTFOOTSenator Lightfoot—A series of questions.UW4CRANESenator Crane—A series of questions, yes. Thank you, Senator Lightfoot. I cannot ascertain how this series of questions can relate at all to the answer that was given by Senator Hill. Madam President, I respectfully ask you to rule this question out of order because it has nothing whatsoever to do with the answer that was provided by the Leader of the Government, Senator Hill.10000PRESIDENTThe PRESIDENT—Part of it I thought reiterated the initial question, and there were some other matters. If Senator Hill has anything he wants to add, I am prepared to let him have the minute to do so.BH4Senator HILL—I remember in opposition that I used to feast on leaks from the foreign affairs department.UI4RAYSenator Robert Ray—That's why you are so skinny!BH4Senator HILL—Now that I am in government I am putting on weight. Perhaps it was the then Minister for Defence feasting on leaks from his own department. That would be a personal reflection so I withdraw that.I have to say that we have set the departmental officials within the environment department a very demanding agenda. The work that was required to set up the Natural Heritage Trust and to put it into practice required an enormous amount of work. The work that we have expected of them in relation to the government's greenhouse agenda, the work that was set in relation to not only the drafting of the most comprehensive—anyway, they are doing a great job and they deserve a lot of credit. (Time expired)BH4HILLSenator Hill—Madam President, I ask that further questions be placed on the Notice Paper .497815:04:004978Carr, Sen KimSenator CARRAW5VICALP00—by leave—I seek leave to table a letter which I was invited to table earlier in question time.Leave granted.Miscellaneous4978497815:04:004978Vanstone, Sen AmandaSenator VANSTONE7E4SALPMinister for Justice10—On 30 June I was asked a question by Senator Lundy in my capacity representing the Attorney-General, and I have an answer which I seek leave to incorporate into Hansard .Leave granted.The document read as follows—QUESTION FROM SENATOR LUNDY TO SENATOR VANSTONE, MINISTER FOR JUSTICE, REPRESENTING THE ATTORNEY-GENERAL IN THE SENATE QUESTION TIME: 30 JUNE 1998QUESTIONHas the Attorney-General's Department been advised by the Department of Foreign Affairs and Trade of its concerns that the Government's policy on parallel importation could illegitimately allow importation of pirate Cds into Australia?ANSWERNo. The Attorney-General' s Department advises that it has not been so advised by the Department of Foreign Affairs and Trade.SUPPLEMENTARY QUESTION 1Has the Attorney-General's Department been advised by the Department of Foreign Affairs and Trade that the Government policy could also breach TRIPS and Australia's general obligations as a member of the World Trade Organisation?ANSWERNo. The Department of Foreign Affairs and Trade has not advised that the policy of allowing parallel importation of legitimate goods would breach TRIPS or the WTO Agreement.Advice of the Department of Foreign Affairs and Trade was sought in relation to possible amendment of the Copyright Amendment Bill (No 2) 1997, which implements the Government' s policy. The advice provided has supported amendments to the Bill that have now been made public and which further ensure that the Bill could not be said to breach TRIPS or the WTO Agreement by reason of allowing importation of pirated Cds or discriminatory treatment. The advice was based, and sought, on the premise that the Bill, in implementing the Government' s policy, had to be able to withstand these objections.SUPPLEMENTARY QUESTION 2Does the Department of Foreign Affairs and Trade's advice also suggest that an international challenge to the Government's policy if implemented, from either the US or the European Union is a realistic possibility?ANSWERNo. The advice provided does not suggest that the policy, if implemented as proposed by the Govern ment, faces a realistic possibility of successful WTO challenge from the US or the EU.497915:04:004979Vanstone, Sen AmandaSenator VANSTONE7E4SALPMinister for Justice10—On 12 May in my capacity representing both the Attorney-General and the Minister for Immigration and Multicultural Affairs I was asked two questions by Senator Harradine concerning legal aid for asylum seekers. In relation to one of the questions by Senator Harradine the answer was given on 25 May on advice from the Department of Immigration and Multicultural Affairs and the Attorney-General's Department. I have subsequently been advised that that answer is incorrect or has some incorrect information in it. The corrected answer is now available and has already been given to Senator Harradine. I seek leave to incorporate into Hansard that corrected answer.Leave granted.The answer read as follows—CORRECTED ANSWERS TO QUESTION WITHOUT NOTICEQuestionWill there be a guarantee that there will be no diminution in the amount of funds available to those asylum seekers who, on the face of it, have genuine claims and who have suffered persecution and require that sort of advice in order to negotiate the complex legal system that Australia has adopted?AnswerThe Government is committed to ensuring that all asylum seekers found to be refugees are treated in accordance with Australia's international obligations under the Refugees Convention and Protocol. It is not accepted that meeting this commitment requires lawyers to assist asylum seekers with their applications.Every asylum seeker in detention will have access to assistance at Government expense to help them make an application for a protection visa. Assistance will also be provided to those protection visa applicants in the community who are experiencing financial hardship, or have suffered torture and trauma and have cases of merit. The assistance is provided under contract by registered migration agents and some legal aid commissions.The service provided is immigration advice and assistance for applications at the primary stage and the review stage. Legal aid however, continues to be available for matters where there are differences of judicial opinion which have not been settled by the Full Court of the Federal Court or the High Court, or where proceedings seek to challenge the lawfulness of detention.The changes made to the guidelines for legal aid funding in refugee matter recognises that Australia has a world class system for determining claims for Australia' s protection and that genuine refugees need only be able to relate their story to officers of the Department of Immigration and Multicultural Affairs or to the Refugee Review Tribunal. This is not "a complex legal system" and legal expertise is not necessary in order for applicants to present their claims for protection.498015:05:004980Schacht, Sen ChrisSenator SCHACHT4J4SAALP00—I move:That the Senate take note of answers given by the Minister for Communications, the Information Economy and the Arts (Senator Alston), to questions without notice asked today, relating to Telstra.We had here today the Minister for Communications, the Information Economy and the Arts (Senator Alston) showing the first genuine signs of being rattled by the fact that in the coalition there is growing dissent from the Prime Minister (Mr Howard) and his policy to fully privatise Telstra. We have seen over the last week members of the National Party both in this place and in the House of Representatives on the public record openly disagreeing with the Prime Minister and with the minister on the full privatisation of Telstra. They are reflecting the panic in the National Party that overwhelmingly their own voters, their own supporters in rural Australia do not support the full privatisation of Telstra and want to maintain Telstra in two-thirds public ownership, which it is at the moment.Every published opinion poll taken since the Prime Minister announced his policy on 15 March to fully privatise Telstra has shown at least a two to one, if not a three to one, majority opposed to any further sale of Telstra shares. So it is not surprising that the National Party and some rural Liberal backbenchers are asking and demanding that the Prime Minister have meetings with them to change the policy. It went so far last week that the member for Dawson, Mrs Dee-Anne Kelly, got up in the parliament and, on the record, said that she would cross the floor and vote against the privatisation of Telstra because that is what her constituents wanted.We have seen the government's policy on Telstra unravelling. One of the reasons it is unravelling is that, when the Prime Minister made this announcement on 15 March to fully privatise Telstra, he had never even been to cabinet with a cabinet briefing seeking the views of cabinet—he announced it unilaterally. As I understand it, not even the minister for communications was involved in discussions with the Prime Minister, who at that stage was desperate to make an announcement to take attention away from the problems Senator Parer had given his government at the time of the Liberal Party convention in Brisbane.Ordinary Australians understand that a fully privatised Telstra will not provide a commitment to services in rural areas. Of course, the cat was belled this weekend on this issue in an article in the Australian Financial Review on Saturday, which I have heard no-one deny, that says:Telstra Corp's board has warned the Federal Government that it may not be able to support a major upgrade of service to the bush, saying such a scheme could harm its financial performance and sharemarket value.We have it there: the board is interested only in the value of the shares and the bottom line profit; it is not interested in providing telecommunication services to all Australians no matter where they live. The Labor Party makes it clear that we have never favoured the sale of Telstra. We understand that 99 per cent of telecommunications services in regional and rural Australia are provided by Telstra, and will be provided by Telstra for the foreseeable future.The public has every right to be cynical of the promises made by the minister and the government that there will be an improved customer service guarantee. In March of this year, the Telecommunications Performance Monitoring Bulletin was published, causing considerable embarrassment to the minister. Before it was actually tabled, he had announced he was going to increase some marginal penalties on Telstra and carriers if they did not meet certain standards demanded by people in the bush. I want to point a couple of these out. The percentage of new services connected on or before the agreed commitment date, in the 12 months to March this year, fell from 81 per cent to 64 per cent. In the first full period of privatisation, it went down nearly 18 per cent. The percentage of faults cleared within one working day of notification in the country fell from 69 per cent to 59 per cent. The percentage of faults cleared within two working days of notification in the country fell from 87 per cent to 77 per cent. These are just a few of the examples that show that the privatisation of Telstra is cutting off services to the bush. (Time expired)15:11:004981Tierney, Sen JohnSenator TIERNEYO15NSWLP10—That is a bit rich coming from the ALP, bearing in mind their record in areas such as the privatisation of public companies. If we look back to the Commonwealth Bank and Qantas, everyone will recall that they went to elections and swore on their hearts, `No, we will not privatise these companies. We will not sell off public assets.' I am sure Senator Carr, in particular, was perturbed by the fact that his so-called `socialist government' kept doing this, year in, year out.It is absolute humbug and hypocrisy for them to oppose what is happening with Telstra at the moment because, if Australia had been unfortunate enough to continue with a Labor government in 1996, they would have been flogging off Telstra at this stage. If they had followed former Prime Minister Keating's view on it in cabinet, they would have sold the lot in one hit—none of this one-third and then the rest; they would have sold the lot in one hit.They would have done it for the reason that we and countries right around the world do it—because these are business operations, these are commercial operations. They have always been required not only to run their business but to return a dividend. Governments have taken this money out and put it back into their budgets. When you look at the balance between selling Telstra and what we get in return to reduce public debt, the interest we save versus the dividend it would have returned otherwise, you find that you come out in front doing it the way that we are doing it at this time.Of course, you must set up universal service obligations and customer service guarantees. That is exactly what this country has done, as other countries around the world have done. The important thing is that we have a communication market that is highly competitive, that drives costs down, that drives prices down and that delivers real dividends back to the customers. That is what we are setting up under this system—that is what Labor would have set up. But we have set up what is probably the best system of guarantees anywhere in the world for customers, particularly for those in the bush.The Australian Financial Review of 6 July published an article on what our approach is doing for people in the bush. It points out that 93 per cent of the country gets these sorts of services. In comparison, rural connections in the United States are running at only 85 per cent. The Australian Financial Review article notes that 93 per cent of rural customers in Australia currently have access to broadband digital services such as ISDN, compared to 80 per cent in the United States and 70 per cent in Canada.We have been setting up this system so that top benefits are given back to rural customers in Australia and they get high quality service. What they have now compared with what the Labor government had set up previously is a competitive market that has been made more competitive since deregulation in the middle of last year. That more competitive market will deliver lower prices and other benefits. Some of those other benefits—I am sure the people who work in Telstra are really very chuffed with this—include the opportunity for people to be part owners of Telstra. The changing balance in the work force across different companies means reduced numbers working for Telstra. As the minister said, there has been 14 per cent growth in this sector in Australia. Why are people not complaining? Because there are jobs in this sector. If the jobs are not in Telstra, they are in other private companies. This is the most dynamic and expanding market in Australia.We have set up a much more competitive market. The full sale of Telstra means that a great dividend is returned to the government. With that dividend, the government can provide infrastructure in rural Australia. We can guarantee universal service obligations and retire public debt for Australia. It is a great program and something that all Australians should support. (Time expired)15:16:004982Mackay, Sen SueSenator MACKAY9L6TASALP00—I rise to support the motion to take note of the various answers provided by the Minister for Communications, the Information Economy and the Arts (Senator Alston) at question time today concerning Telstra. I rise to my feet as a senator for Tasmania, a state which the government advised would be substantially better off as a result of the one-third privatisation of Telstra. The reality is that Tasmania is not. I noted with some interest that, for the second time in a row, the minister was unable to answer questions with regard to his commitment of an additional 170 jobs to be created in the state of Tasmania. The reality is that not only have those jobs not been created, but there has been a substantial diminution of jobs in Tasmania and in the level of service there.What was the minister's response to my question? He said that it was not his commitment—he really ought to know—but Telstra's commitment. He said, `Go and ask Telstra.' I notice in the same response to Senator Schacht that the minister quoted extensively from private figures which were not tabled. How on earth are we supposed to know? He said that it was not his commitment but Telstra's commitment. He says this, on the one hand, in terms of the commitments and guarantees that he gave to Senator Harradine over the one-third privatisation of Telstra.However, on the other hand, the very same minister says, `Trust me. I'm from the government. I guarantee you that there will be no cutbacks in services in regional Australia and that there will be no cutbacks in jobs.' How on earth can we believe him? How on earth can the people from my home state of Tasmania believe it when the empirical evidence is there to be seen? The reality is that the state of Tasmania, which is supposed to have done well out of the deal with Senator Harradine, has gone backwards in both the number of jobs created and the services supposedly created.Let us look at it. Not only has the government not honoured its commitment to Senator Harradine in terms of the 170 additional jobs being created but, as was pointed out by Senator Denman, we have upwards of an additional 80 jobs being lost. The people who provide those services have been told that they have about 12 months before their jobs will go. That is another 80 on top of the 179 already lost. So much for the 170 jobs that were supposed to have been created. All I can say is that if this is a state that is supposed to have done well out of the one-third privatisation of Telstra, I can only guess what on earth is happening throughout regional Australia. We know what is happening because we have been told about it not by people on this side of politics but by those in the National Party. For example, the honourable member for Lindsay (Miss Jackie Kelly) has indicated that she may be prepared to cross the floor with regard to it.Let us also examine the minister's response. He says, `You don't have to have 170 additional jobs being created in Telstra because they will be created in the private sector.' I am here to tell the Senate that that has not happened in Tasmania, which has an unemployment rate of approximately 11 per cent. There simply has not been a pick-up in job creation elsewhere in the telecommunications industry in aggregate in this state. It is just not going to happen without the retention of two-thirds of Telstra by the government and an interventionist approach to ensure that rural and regional Australia has access to the service that it ought to have, not simply the services that this government believes it should have.For the information of the Senate, and in the time remaining to me, I want to talk about a very, very sad article that appeared in the Mercury the other day about a family in Electrona, which is probably half an hour outside Hobart, whose house caught alight. They did not have the telephone on, so they rushed to the nearest telephone box, the only one in Electrona, but the telephone was out of order. It had been reported out of order two days beforehand. They had to then drive another half hour to the nearest town of Snug to ring the fire brigade. In the meantime, their house burnt down.If government members seriously believe that this represents an increase in the standard of services to regional Australia, I would like them to tell it to that family, which now has nothing. Their house burnt to the ground and they now have nothing because the only public telephone box in the town of Electrona was actually out of order. This sort of thing is becoming commonplace in my home state of Tasmania. I implore Senator Harradine, when he comes to cast his vote, to vote in the interests of the state of Tasmania and to ensure that Telstra remains in public hands.15:21:004983Macdonald, Sen IanSenator IAN MACDONALDYW4QLDLP10—The difference between the Australian Labor Party and the coalition is that Labor Party members enter into these debates on the basis of information given to them by the unions. Those of us on this side know about this issue because some of us actually live in the bush. Madam Deputy President, you live in a large provincial city.9L6MACKAYSenator Mackay—I live in Tasmania.YW4Macdonald, Sen IanSenator IAN MACDONALD—You live in a capital city. I live in a small country town, so I know first-hand what this is all about. I know what telecommunications are like. I do not have the union ringing me up and telling me the facts; I know them. I live in a small country town with less than 10,000 people in the electorate of Dawson. I have a couple of phone lines into my house. I have a computer that is connected to email to keep me in touch with Canberra and Townsville, where my office is. I also have a laptop computer which plugs into a mobile phone. All those work tremendously from a small country town in North Queensland.I have got to say that, right around Australia, telecommunications have never been as good as they are now. They have been improving since this government came to power because we understand and care about what people in the bush want and need. I agree that it can always be better. But, under our government, with the privatisation of Telstra, the people who work there have a new enthusiasm. The services to those of us who live in the country have improved tremendously. They will get better. Senator Tierney lives out of the capital city. Senator Heffernan lives in the bush. We understand. We do not just listen to what the unions tell us, Senator Carr. But there can be improvements, and we acknowledge that. Perhaps the quality of the basic telephone service could be better. Perhaps we could get better access to advanced services. Perhaps infrastructure and employment needs to be looked at. But we have already done a lot of things.AW5CARRSenator Carr—Cockies' corner, what do they say?10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Order! Senator Carr!YW4Macdonald, Sen IanSenator IAN MACDONALD—The union bullyboys do not worry me, Madam Deputy President, so do not bother calling him to order. It just shows what the unions are all about.We understand these things. Already a lot of work has been done. The universal service obligation has been upgraded, resulting in significantly shorter minimum connection times for new customers. A major review is going on incorporating a data capability in the USO. We are getting a tougher customer service guarantee obligation. The minister quite clearly pointed out all these things in question time. There is an effective extension of the untimed local call rights via a rebate to those people who do not currently have this option. There are continuing price controls on Telstra.We are doing the right thing. We are selling a public telecommunications company and we are using the money to reinvest in other parts of Australia. The first tranche of the sale of Telstra enabled us to retire a hell of a lot of public debt. It also enabled us to make an unprecedented investment in the natural capital of this nation in the form of the Natural Heritage Trust. We have been able to put money from that telecommunications business into our natural heritage in what I suggest is a far better investment for the people of Australia. We have, as well, retired a lot of debt.What we will do with the proceeds of the sale of the balance of Telstra has not yet been finally determined, although the Prime Minister has said most of it will be used to pay off foreign debt run up by the Labor Party over a number of years, and we will be doing that. That is, of course, good for Australia because the interest that we now pay to overseas lenders will be retained in Australia. We will be able to use all that money that previously went out of Australia for the good of Australia. The regulatory regime in telecommunications will, in fact, enhance Australia's ability to do these things. That is, in my view—and obviously it is the view of most Australians—the way it should be done: a business is sold, the money is invested in better things and the government regulates the way it should to make sure everyone is looked after.It amazes me that, in the political business, the Labor Party, One Nation, the Democrats and the Greens all agree on many things, and opposition to the privatisation of Telstra is one of them. (Time expired)15:26:004984Carr, Sen KimSenator CARRAW5VICALP00—The partial privatisation of Telstra was secured after the purchase of votes in this place involving arrangements for disproportionate amounts of money from an infrastructure fund to go to Queensland and to Tasmania. That deal involved the establishment of arrangements whereby it was said that 170 extra jobs would be guaranteed in Tasmania. On 11 December 1996, Senator Colston was quoted as saying that the Minister for Communications, the Information Economy and the Arts, Senator Richard Alston, and the Chief Executive of Telstra, Mr Frank Blount, had promised him that Telstra jobs in rural Queensland would be reduced by only 3.4 per cent by June 1999.This is completely contrary to what we were told here today: that this commitment was entered into only by Telstra and not by the minister. We can see that, at the time, the statements were very different. The facts are now emerging; not from union sources, Senator Ian Macdonald, not from your National Party mates, who are in absolute uproar over the consequences of the proposal.10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Address the chair, please, Senator Carr.AW5Carr, Sen KimSenator CARR—We have performance reports for Telstra itself from the Senate estimates committee which demonstrate that 1,313 jobs in Queensland were lost over the last year alone, between March 1997 and March 1998. My recollection of the figures at the time the Telstra bill was considered for the first time by this parliament is that 12,263 people were employed by Telstra in Queensland. Given those figures, there has already been a 10.4 per cent drop in employment in the whole of Queensland.If we look at the rural employment situation in country towns, 390 positions were removed from Telstra as part of the overall bid to remove one-third of the workers in Telstra: 390 jobs out of the 3,260 that once were employed by Telstra in country Queensland. There has already been an 11.9 per cent drop in employment in Queensland. The commitment, the promise, that was given was that there would be only a three per cent drop by 1999. Already there has been in excess of a 10.4 per cent reduction in jobs across the state of Queensland, and a reduction of 11.96 in rural Queensland. A similar pattern emerges in Tasmania. There has not been an increase of 170 positions. There has, in fact, been a decline of 147 positions. The same pattern occurs in Victoria: 3,241 jobs were removed in the 12-month period between March 1997 and March 1998.It is little wonder that, since one-third of the work force of Telstra was removed, there has been a substantial drop in the service levels performed by that company. I find it amazing that anyone could challenge this proposition. A one-third drop in the work force leads to a substantial drop in service to customers. It makes sense, surely. Why is that? It is because the commitment by the Telstra management is not now to consumer services or community service obligations; it is to the shareholder. The directors' primary concern now is the private shareholders. Their primary concern is not the 18 million Australians who actually own Telstra—or the two-thirds of it still in public ownership—but those one million or so who own a third.What is the real commitment here? It is to make sure that the unit costs per line are kept down by reducing the number of workers available so as to keep the share price up. Under a privatised Telstra, the real commitment is to the private share owners—not to the community, not to this country as a whole. The philosophy on which the Liberal Party is based is private profit over the benefits of the community at large.What better example could you find of that simple philosophy than what is occurring in Telstra. It is not only the union saying there has been a massive drop in the standards of community service obligation and a massive drop in customer service obligation, but it is now a government body. For two successive quarters the ACA has been saying there is a dramatic decline in the services provided to consumers in this country by Telstra, directly resulting from the decline in the number of workers employed by Telstra to do the job. Why does that surprise anyone? Why do we accept for a moment the nonsense that is trotted out by this minister when he blames it variously on the weather or on remoteness? We are talking about service declines in Victoria. That is an outrageous proposition. (Time expired)15:31:004985Macdonald, Sen SandySenator SANDY MACDONALDCX5NSWNP10—It is interesting to follow Senator Carr in a debate. He should go back to stacking ALP branches and trying to rehabilitate Joan Kirner's political career, because it was a complete and utter diatribe. Today the Senate is sitting alone, and the nation's media is at our beck and call. The Labor Party has completely ignored the great issues of tax, the waterfront and Wik. Instead, we had Senator Schacht getting up and speaking on the sale of Telstra and its effect on regional Australia.This is from a party that does not even support us on the community service guarantee. This is from a shadow minister who hardly takes it seriously. I am always amused by Senator Schacht, who frequently has a smile on his face. It reminds me of the story told by Bob Hope about why Jimmy Carter seemed to smile a lot. According to Bob Hope, `The reason he is smiling a lot is because he has realised his administration is a bit of a joke.' The Minister for Communications, the Information Economy and the Arts, Senator Alston, is still waiting for Senator Schacht's submission on the Mansfield inquiry. I do not know whether he ever submitted one—I do not think he did.This is a thoroughly opportunistic role being played by the Labor Party just as they are doing for the rest of privatisation. You cannot believe a word that the ALP says on the sale of Telstra. They wanted to sell it in opposition and would do so if ever they were elected again. The difference is that by selling it we will reduce the government debt that we inherited from Labor. We have also said that we would not sell it without seeking the endorsement of the Australian people via election. We say what we are going to do.Quite simply, the government understands and shares the concerns of many people in regional Australia about telecommunications services. Being properly provided with telecommunications leads to being situation neutral for those who live in regional Australia. These concerns principally relate to the quality of their basic telephone service, access to advanced services, as well as concerns about infrastructure and employment.In part, these have been addressed by a framework of measures—and there are a lot more to come—including an already upgraded universal service obligation. This guarantee of access to the standard telephone service is known as the universal service obligation. The net cost of providing it to Australians in regional areas is funded by a levy on Telstra and all other telecommunication carriers. This arrangement will continue to apply and be enforced regardless of who owns Telstra. One aspect of the universal service obligation is that the cost of installing and maintaining a phone line in unprofitable areas of Australia is subsidised by phone users in other parts of Australia. Also, there will be an upgrading of the universal service plan containing significantly shorter minimum connection times for new customers, a major review into incorporating a data capability into the USO and a tough customer service guarantee obligation, which is absolutely essential. Thanks to the coalition, all phone companies are required by law to provide a customer service guarantee. If a phone company offers an inadequate service in line installation or repair, its customer is entitled to receive financial compensation, whether in regional or metropolitan Australia. This law will be maintained and, if necessary, will be strengthened.There will also be continuing price controls on Telstra. There will be an effective extension of untimed local calls by giving a rebate to those people who do not currently have this option, requiring Telstra to make ISDN available to at least 96 per cent of the population. In addition, the regional telecommunications infrastructure fund, which was made possible by the sale of the first tranche of Telstra, will be used for networking the nation. There will also be ongoing quality of service monitoring arrangement backed up by reserve ministerial licensing powers.The introduction of an open environment to new competitors, which has already seen the likes of Iridium take out carrier licences principally to service rural and regional Australia, will probably demonstrate that the traditional telecommunications solutions are not the only ones for Australia and that market-driven innovation is also an important part of the delivery of service. There is no doubt about that. Technology is changing so rapidly in this area that many of the concerns of regional Australia will be met by the competition from the carriers. We will also be looking to further enhance this framework in the context of the Telstra (Transition to Full Private Ownership) Bill 1998 . (Time expired)10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Order! The time for the debate has expired.Question resolved in the affirmative.Committees498649864986Motion (by Senator Calvert, at the request of Senator Patterson)—by leave—agreed to:That the Senate Environment, Recreation, Communications and the Arts Legislation Committee be authorised to hold an in camera hearing during the sitting of the Senate on Thursday, 9 July 1998 from 9.30 a.m. to take evidence for the committee's examination of Telstra's annual report.Bills4986r4554986Consideration resumed.10000CHAIRMANThe CHAIRMAN—Order! The committee is considering the message from the House of Representatives concerning the Native Title Amendment Bill 1997 [No. 2] , and the motion moved by the Special Minister of State, Senator Minchin, that the committee does not insist upon its amendments disagreed to by the House and agrees to the amendments made by the House.15:38:004986Boswell, Sen RonaldSenator BOSWELLYE4QLDNP10—The quest for a workable solution to native title following the High Court decision on the Wik case in December 1996 has been long and harrowing for all those concerned. We are familiar with, if not always adept at, grappling with issues like taxation, social security, unemployment and trade, and native title has been an original concept challenging the political system.Throughout the debates and negotiations the National Party has stood up strongly for the bush in their need for certainty and stability in order to make their great contribution to this country. Native title has been one of the main concerns in the bush. They believed in the original proposition that native title would not be placed on pastoral leases. That was the original position and then came the 10-point plan and this compromise signed off on by the National Farmers Federation, the mining industries and all the conservative state governments.While people the bush are certainly not happy with this compromise, they are realistic because it is better than having nothing there at all. The people in the bush have been angry, frustrated and wary, but they are resigned to a compromise in order to get their great industries of agriculture and mining moving again.No-one believes that this is the end of the controversy of native title, but it is a long way towards a beginning for Australia post-Wik. Once the High Court handed down its Wik decision, the die was cast for further legal challenges. The decision by its very nature created complex questions which will be played out in our courts for some considerable time.The nature and definition of native title is a substantial issue yet to be explored, let alone resolved. Legal challenges will therefore be with us for a long time. This is not due to whether we have a 10-point plan, the extinguishment of native title or a 50-point plan; it is simply due to the need to create precedents to flesh out the High Court's original decision. No doubt there will be challenges by indigenous Australians, the mining industry and also by rural and primary industries.Under the agreement reached between the government and Senator Harradine, the right to negotiate on pastoral leases is removed, with native title holders being given the same rights as pastoralists. Renewal of pastoral leases will not be subject to the right to negotiate. Leaseholders will be able to carry on their full range of farming activities without concern about the effect of native title. There will be some problems if there is to be upgrading, but that was always the case under the 10-point plan.Ambit and overlapping claims will be discouraged through a higher threshold test. All existing claims will have to go up against this new, tougher test. Native title holders have the right to be consulted regarding mines and compulsory acquisition on pastoral leases and in towns, but this is not a right of veto above the rights enjoyed by other Australians.The Native Title Act as a whole is no longer subject to the Racial Discrimination Act, which would have caused legal chaos. Instead, the RDA is only relevant to the performance of functions and the exercise of powers authorised by the Native Title Act itself.The sunset clause has been removed. This is a significant concession from people whose homes and businesses lie in claimable areas. Most understand that native title rights can be sought at common law without the imposition of a time limit. But the idea of a time limit was understandably very attractive to people who have been dragged through the debate in fear and uncertainty, not knowing the effect of native title on their futures.I remind the Senate that we still do not know what native title is at this point. That is the scariest thing for the people in the bush. They have heard Aboriginal leaders say that it ranges from traditional pursuits to economic benefits; from fishing to houses. It is still the great unknown. That is why leaseholders in rural Australia have been so wary of Wik.Yet we still hear no recognition of this fact in this chamber. Whether it is today, or most of the 89 hours of this debate over the last year or so, the minor parties in the Senate have given no credence to the anguish felt in the bush. It has not been created by the National Party, but by the uncertainty of what native title itself is as described by Aboriginal spokespeople.It amazes me how Senator Woodley can get up here and describe himself as a friend of the farmers on the one hand and then act totally the opposite when it comes to giving them a fair hearing on native title. The slander and abuse heaped on bush families by minor parties does not bode well for those parties' vote in regional areas.We have at last reached a beginning on native title. It is only a start and we have to go on with it. We have to work together to get the new arrangements up and running and inject confidence back into the agricultural and mining industries. In earlier debates I have stated that these great industries are our best source of jobs and exports and the best source of a future for Australians.We have to get these industries right or the national interest will suffer; the interests of small regional towns will suffer; the interests of food and mining process workers in cities will suffer; and the interests of local mill workers in sugar mills and cotton gins will suffer. Black and white families will suffer together in regional Australia unless we get this right and get this beginning working.That is where the National Party has been coming from in this debate. We have a vision for rural and regional Australia and we must not make the wrong decision now or we will forfeit that vision and this beginning. There remains a possible obstacle, however, in Queensland, and that is the newly elected Labor government. It will be up to them to decide whether to implement the Commonwealth offer of new state arrangements to replace the right to negotiate or to allow the right to negotiate to remain. On pastoral leases this means that Premier Beattie has to choose whether to allow native title holders to have a greater right than the leaseholders on a family farm, for example. In addition, Premier Beattie has to choose whether to change the right to negotiate procedures or see mining companies move south and west where better state regimes are in place. Queensland cannot afford that degree of disinvestment.The great challenge for the new Premier will be whether he can resist the unrealistic and impractical position on native title as taken by his federal leader, Kim Beazley. We all know that Labor is a highly centralised institution and woe betide any rebellion from the state branches. Queenslanders are in this precarious position because One Nation delivered a Labor government on 13 June. As I stated publicly before the state election, only a Borbidge government could be relied upon to immediately pass state enabling legislation should the native title legislation pass through this parliament. Now that Labor is in power I ask: is Beattie prepared to override the Hobart decision on native title and the right to negotiate? Will Beattie dare to take on his own party's powerful central executive? It does not seem likely at all.Today Beattie has announced that he is considering a cooperative approach on state native title regimes with New South Wales Labor Premier, Bob Carr. This is a picture of two Labor Premiers getting together to dud farmers. If Beattie is going to be led around by the nose by Bob Carr—10000CHAIRMANThe CHAIRMAN—Senator Boswell, please refer to your state parliamentary colleagues by their correct titles and not make any imputations against them.YE4Boswell, Sen RonaldSenator BOSWELL—I called them two Labor premiers.10000CHAIRMANThe CHAIRMAN—You have not been using their correct names. You have been referring to them by their surnames only. Please add `Mr'.YE4Boswell, Sen RonaldSenator BOSWELL—If the Premier of Queensland, Mr Beattie, is going to be led around by the nose by the Premier of New South Wales, Bob Carr, on native title issues then Queensland leaseholders should be very sceptical indeed. Until an alternative state regime is in place, the right to negotiate will continue to apply on pastoral and former pastoral lease land, and reservations in relation to mining leases and compulsory acquisition. How long will Mr Beattie wait? Is he going to wait forever or is he going to continue to talk with the New South Wales Premier? Regional Queensland does not have very much time left.In conclusion, I say to Senator Harradine that, while the bush may not have got everything it wanted, it certainly got a great deal more than it would have had if there was no legislation there. I acknowledge the anguish and mental stress that he has been through over the last two or three weeks, and I thank him for it.15:49:004988Lees, Sen MegSenator LEES8U4SAAD00—I begin by acknowledging the Ngunnawal people as we again, for the third time, debate this Native Title Amendment Bill 1997 [No. 2] in this place and take another step backwards in the process of understanding and reconciliation with Aboriginal people.We are not going to avoid the issue of race at the next election by what we are going to do over the next two days. We are not taking that issue off the table. Race will be a key issue when we come to the election—One Nation will make sure it is on the table.This bill will now head off to the courts. It will also now go to the states. Some of the decisions will now be made at that level. Those who are supporting Aboriginal people and reconciliation will, hopefully, begin their efforts again at that level to see if they can get some certainty and a solution that is in the best interests of all Australians.We have postponed an election; we may now not have a double dissolution, but when the half Senate election comes, probably in October, we are going to see that Aboriginality is still a key issue, and that is largely because One Nation will continue to send out a message that is divisive—an untrue message that Aboriginal people are so well off that somehow they have to be brought back to where non-Aboriginal people are.This message has gone unanswered by our Prime Minister. As One Nation continues to ignore reality and tap into the urban myths as they call, for example, for the abolition of ATSIC, the removal of Aboriginal affairs departments, the abolition of specific services for Aboriginal people to force them back into the generic services that have proven over the years to be so unsatisfactory and largely ineffective for them, we hear nothing from our Prime Minister. We do not hear him standing up and explaining clearly to the Australian people why specific services are so essential.Unfortunately, even ministers who do know the facts in their own portfolios have made very few efforts to stand up and undo the damage: to actually put paid to some of those urban myths and to stop the racist bushfire taking off. So I just want to read onto the record today some of the reasons why we should have a government standing up and clearly saying to the Australian people, `The way to support our Aboriginal brothers and sisters is to make sure that they have services that are appropriate for them.'Let us look at the issue of Aboriginal health. The life expectancy for Aboriginal people is 15 to 20 years less than that of the general population. At any age Aboriginal people are more than twice as likely as non-Aboriginal people to die. Diabetes affects 30 per cent of people in some Aboriginal and Torres Strait Islander communities, which is four times the rate for non-indigenous people. The infant mortality rate is still more than three to five times higher than that for other Australian children. We have seen through Aboriginal health services significant gains in all of these areas. Indeed, looking at some recent figures from Queensland, we are seeing, through the appropriate delivery of services, that the infant mortality rate has been brought back to the Australian average.In education, only 33 per cent of Aboriginal and Torres Strait Islander children complete secondary school, compared with the national average of 77 per cent. Here, at last, we were also seeing some results through Abstudy. But what was one of the first decisions that this government made? To reduce the support available through Abstudy. I stand here now and say very clearly to the Prime Minister: if you further degrade the services that Abstudy delivers, we will see even fewer Aboriginal people with the opportunity to go through secondary education, let alone get to tertiary education.Employment is an issue often highlighted by One Nation. But the facts are that the unemployment rate is 38 per cent for indigenous people, compared with 8.7 per cent for the general population. The CDP programs that One Nation would like to abolish, the work for the dole programs for Aboriginal people, are absolutely essential if we are to come to terms with this appalling unemployment rate and, at the same time, provide meaningful work opportunities and services in Aboriginal communities.I highlight again that Aboriginal people on CDP programs are frequently earning less than non-Aboriginal people get on unemployment benefits. This is because of their other needs—for example, for supervision and materials. It was only in the last budget that we saw one of the few gains Aboriginal people have made under this Prime Minister, which was that people in CDP programs can now tap into some of the other benefits that the rest of us have always enjoyed, such as rent assistance.Let us move on to look at some of the Aboriginal programs that have not been defended by our Prime Minister. They are generally complementary programs—very similar to the programs but delivered in a different style—to others that the rest of us, the non-Aboriginal Australians, enjoy.For example, there is the CDP program for unemployment benefits that I have just mentioned—that is nearly a third of ATSIC's budget, by the way. If we look at Aboriginal health services, we see they are instead of Medicare; if we look at the housing services provided through ATSIC, we see they are instead of the Commonwealth-state housing agreement; we have the targeted Aboriginal legal aid service instead of the general legal aid service; and so it goes on.Less than 10 per cent of the Commonwealth assistance that goes to indigenous people is in the form of payments to individuals. The vast majority of the payments go to organisations which are addressing chronic needs within Aboriginal communities. It would be nice if we heard the Prime Minister, on prime-time radio or television, making some of these facts clear. Another 10 per cent of Commonwealth expenditure on indigenous services is what the states should be putting in, but they continue to refuse to do so. I will just make one further point that the entire ATSIC budget is about the same as the diesel fuel rebate. When we look at all the other special services that different sections of the community enjoy, it is very disappointing to see this government not standing up for specific services for indigenous people.Unless we are going to take on the David Oldfields of this world and call a lie for what it is, we are going to feed these urban myths indefinitely; we are going to let them build and they are simply going to multiply. Unless we get the facts on the table, this nation will remain divided and the possibility of true reconciliation will be put back even further. Not only has the Prime Minister not taken on One Nation and all its false and misleading statements, he has actually added to the attacks himself; it is not just his silence that has been a problem.The facts are that this government commenced its attacks on Aboriginal people before it took office. There was the long-term opposition to land rights, and you need to look back at the response of the coalition to the Mabo decision and at all that was said and done during the Mabo debate. Even before that, there was the resistance of many people on the coalition benches, in particular the Prime Minister, to the notion that Aboriginal people were the original owners of this country and must be recognised as such. That notion has simply not been evident.The Prime Minister himself was happy to attack ATSIC in one of his first statements when getting into office by demanding they be audited. There is his failure to sign the code of race ethics, his reference to the black armband view of history, his refusal to say sorry, the reduction in Abstudy support and, of course, all that has been said on Wik to date.We must remember, too, that this bill goes a long way further than just dealing with what was the High Court's decision on Wik regarding native title and any conflict with pastoralists. As you read through this bill, you see we have dealt with things like title over water and pipeline routes; we have seen an attempt to hand over to pastoralists to a massive degree the right of use of public land way beyond anything even dreamt of in the Wik decision.But the Prime Minister continues to fuel community angst and unrest by his consistent message on Wik, his argument as to why the 10-point plan is necessary. His consistent statements about how everybody must be treated the same and everybody must be equal sound fine—indeed, they are the sorts of statements any adviser would advise you to make because they are so hard to argue against. But when you take them apart, you see that the message that Australian people are getting is that somehow Aboriginal people are a lot better off. If we do anything today, hopefully we will encourage the Prime Minister to start making some far more accurate statements about the true nature of the rights of pastoralists as opposed to those of Aboriginal people.Today I call on the Prime Minister to do something he has not done as far as the understanding of the importance of land to Aboriginal people is concerned. He has never assisted the community understanding of what it means to Aboriginal people to have rights over their own land. In effect, he has sown the ground and prepared the crop for an extreme party to now come in from the right and harvest those votes the coalition probably presumed were theirs. I believe the National Party feels very put out, particularly as it is their voters who are changing their minds. But, as I said, the ground was effectively prepared. It was ploughed and the seeds have been sown over the past two years with the result that we now see an extreme party coming in to the detriment of the political processes in this country. What is done? Very little is done. For ten months nothing was done to counter their arguments.Mr Howard will not achieve his `certainty' with this third attempt at reducing opportunities for Aboriginal people to have some say over their traditional lands. We will not get certainty until we have the parties sitting down around a table, as happened on Cape York, sorting out a regional agreement that everybody is happy with. We cannot get certainty if we leave Aboriginal people out of the negotiations. I guess one of the most important things, if we are going to get certainty, is committed and determined leadership to actually try to achieve agreement on the ground. Unfortunately, I do not believe that our Prime Minister is committed to doing anything to improve community understanding of Aboriginal issues. Neither do I believe the Labor Party has a lot to crow about. If we look back to the Hawke, Burke and Goss eras, they gave little but lip-service to Aboriginal aspirations. I am sure there would be many in today's ALP who are indeed a little relieved that what we are doing is effectively gutting Keating's Native Title Act.But we are not debating Labor legislation today, and I know many Labor members are committed to trying to improve the situation. What we are debating is legislation of a government that I can describe as, at best, a hostile government when it comes to Aboriginal people. It is led by a Prime Minister who is hostile to the interests of indigenous Australians, expressed through both his actions and his inaction. On this defining issue, I believe that, as we look back at history in times to come, this Prime Minister will be seen as the worst Prime Minister this country has ever known.16:02:004991Reynolds, Sen MargaretSenator REYNOLDSXI4QLDALP00—In speaking on the amendments to the Native Title Amendment Bill 1997 [No. 2] today, I want to acknowledge the considerable efforts of Senator Harradine to negotiate a compromise that maintained protection of indigenous rights. I know he was sincere in his motivation to avoid a race based double dissolution, which would lower the quota necessary to elect One Nation candidates. I particular note his concern in his speech today that the Prime Minister (Mr Howard) did not include indigenous people in his negotiations. But overall, notwithstanding my acknowledgment of his efforts, I cannot accept the changes to the right to negotiate and the Prime Minister's commitment to buy out Aboriginal heritage, at enormous cost to the Australian taxpayer, and to assume that you can merely buy Aboriginal interest in land.The deal that is presented to us today is more about a political rescue package for the Prime Minister than, as it should be, about enshrining native title rights in Australian law. I believe it is a national tragedy that we have been unable to reflect wisely on the High Court decision in the Wik case, because ongoing legal challenge will create unnecessary hostility towards indigenous people. But where else can they turn to to have their rights clearly defined and protected? It is interesting that we have continually heard the Wik case referred to as a problem. It is only a problem to those who insist on seeing it as a problem, who cannot see that it could have been an historic solution in terms of Australians finally coming to terms with their history and finally coming to terms with the gross injustices of the past. It has continually been described by leaders, by a variety of interests, by the media and by people in the general community as a problem. It will remain a problem until Australians face the reality of their history. Sadly, I fear that the amended deal, so-called, will not do this.Australia's political system has again failed indigenous people, and they have no alternative but to return to the courts. Only the national justice system has been prepared to fully recognise Aboriginal native title. The original landmark native title legislation was passed under the Keating administration, and I give former Prime Minister Keating full credit for his efforts in regard to that legislation, notwithstanding some areas which we would now change in hindsight. The one thing that we can be sure that former Prime Minister Keating will go down in history as having done is to have accepted indigenous people as equal partners in the negotiation process. I well remember, in the period of those negotiations, indigenous people going into his office to negotiate, not once, not twice, not three times, but over and over again—and probably, Senator Harradine, at the same kinds of hours as you were keeping in the past fortnight. On that occasion the leader of Australia was prepared to negotiate with indigenous people. Sadly, on this occasion the Prime Minister, John Howard, is not prepared to do this.Let me take this opportunity to remind the Senate that Queensland has failed on two specific occasions to come to terms with its history. On both occasions the High Court has forced the issue by proving the interpretation of narrow-minded state governments to be wrong, both morally and legally. In doing so, it has generated historic recognition of native title.On the first occasion, a particularly paternal and interventionist Premier, Joh Bjelke-Petersen, refused to recognise the rights of Eddie Mabo, who wanted to take his family from Townsville back to his birthplace of Murray Island in the Torres Strait. In the 1970s, a Queensland National Party premier could impose such draconian control on the lives of indigenous people. Then Premier Bjelke-Petersen refused to allow Eddie Mabo to go back to his land. Thanks to that decision, Eddie Mabo challenged this ban prevent ing him from travelling home. Ultimately and ironically, it was this denial of access that led him to his successful High Court challenge.Twenty years later, a Labor premier, Wayne Goss, had the opportunity to learn the lessons of the past and to demonstrate his recognition of the injustices suffered by Aborigines and Torres Strait Islanders in his state. When the Wik people signalled their intention to have their property rights determined following the High Court's recognition of native title in the Mabo case, the negative response from the Goss government continued the pattern set by John Bjelke-Petersen. A costly court case was the preferred choice of a second Queensland government determined not to offer any concessions to the Wik people, who were driven from their land as recently as the 1960s when mining interests at Weipa saw the then government forcibly remove people from their homes, which were subsequently burnt to the ground. Another legal appeal, another premier. The High Court, again, demonstrated what Premier Goss had refused to face: the reality that coexistence and negotiation were the only realistic outcomes in implementing native title reform.Essentially, two Queensland premiers of quite different political persuasion have directly contributed to the Mabo and Wik High Court rulings, forcing all Australians to finally recognise native title. What if those two premiers had demonstrated a different style of leadership at the time? What if Eddie Mabo had been given automatic return to travel to his home island? What if Wayne Goss had been prepared to sit down and negotiate with the Wik people? What a delicious irony that these two former Queensland premiers have forced the High Court to recognise native title rights in Australia.The moral of this very Queensland story is that only negotiation will ultimately resolve conflict, and avoidance of negotiation will only delay harmonious resolution. We should be aware enough of this as a means of settling differences in the international, national and local arenas. Why should negotiation be different when it comes to dealing with historic injustices? Is it because people cannot face the reality of negotiating realistically with indigenous people? Is there a hint of racism in the fact that people who would choose to negotiate with other property owners feel that they cannot negotiate with indigenous property owners?Now we have a federal government avoiding negotiation with indigenous people in two ways. Firstly, the Prime Minister has finalised the so-called Wik deal by negotiating with state premiers, and mining and pastoral representatives, but he has refused to face indigenous negotiators. Why? After all, it is about their rights. Secondly, he has deliberately overturned a national right to negotiate principle, preferring instead to hand this option to individual states. So we now have a third Queensland Premier with the responsibility of leadership to avoid the serious undermining of indigenous property rights in my home state.In minority government, Peter Beattie faces an enormous challenge to legislate a right to negotiate principle. I wish him all the very best of good luck in attempting to do so. However, given that he is in minority government, I do have an alternative suggestion that may be possible as a fall back position if he is unable to get legislation through. He does have a real opportunity to utilise the very effective community justice program, a Labor government initiative of 1989. Through that community justice program he could establish a native title negotiation unit within his government. To my knowledge, that would not require legislation; that would only require the determination of and resources from his new cabinet. Such a decision would start to overcome the sorry history of arrogance and intransigence within Queensland governments of both sides of the political divide, which have failed dismally to date to recognise indigenous native title rights.Of course, Australia as a nation will be judged by the leadership of its Prime Minister. I believe Prime Minister John Howard has failed to measure up to the standard expected in setting, with absolute clarity, a national commitment to indigenous property rights. When people look to Australia they will not ask what individual premiers are doing; they will ask what the leader of this nation is doing with regard to indigenous property rights. But the Prime Minister has absolved himself of the responsibility by some very subtle buck passing to state governments.I hope that Labor state governments will show just how limited is the vision of the current federal government by developing innovative right to negotiate models. But neither Premier Carr nor Premier Beattie are national leaders. They do not have the responsibility to account for their actions on behalf of the people of Australia; they must only account for their actions on behalf of the people of their respective states. Prime Minister Howard currently holds that mantle, and he has failed to show leadership by selling off indigenous property rights in exchange for time for his government before it faces an election.I predict that, just as the High Court has proved a National Party Queensland premier and a Labor Party Queensland premier to be grossly in error in their approach to indigenous land rights, so too will a Liberal Prime Minister be found wanting in his decision making on this issue. I understand that already a number of senior lawyers have questioned the constitutional validity of the revamped 10-point plan. More uncertainty is likely, not less, as we await the outcome of legal challenge. Meanwhile, people of goodwill will continue to take a commonsense approach to native title.We are fortunate to have an Australian Local Government Association that has initiated Working Out Agreements with Indigenous Australians, and they are doing what the Prime Minister is not prepared to do: consider direct negotiation. We also have Rural Landholders for Co-existence, a group of rural landowners who are working towards negotiated outcomes. One of them, Camilla Cowley, deserves particular recognition for her efforts in this regard.Finally, I would like to draw attention to the fact that in other countries there is direct negotiation with indigenous people. Canada's Aboriginal Action Plan focused on communities and was founded on reconciliation and renewal in January this year, when face to face negotiations were held between the Canadian government and indigenous leaders.16:17:004994Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Any honest discussion about the Native Title Amendment Bill 1997 [No. 2] by a politician needs to begin with an apology; not an apology about a history of genocide and stolen generations—although one is long overdue from our government—or an apology about the lack of Aboriginal political representation, although their absence from parliament is an international disgrace. When it comes to the 10-point plan legislation, the apology must be for the way the parliament has taken the legitimate land rights of indigenous people and turned them into a legal and political football.The ancient native title rights of indigenous Australians now depend on the distant and inaccessible world of common law judgments and federal legislation. High Court rulings have become precious victories, and a clause in legislation can mean the difference between complete dispossession and the maintenance of a few basic rights. The deeply spiritual and cultural connection to country, unique to each and every Aboriginal community, has been presented to the Australian community as so much legal jargon. For white Australians, the process is impossibly confusing. For Aboriginal Australians, it is heartbreaking. The few meagre rights delivered to Aboriginal people in the wake of Mabo are now being sliced away with the stroke of the Prime Minister's and Senator Harradine's pen. What began as a decade of hope and healing for Aboriginal people has become a decade of distress and division.Rather than attempt to build upon the limited principles of Mabo, Australian governments have attempted to limit Aboriginal rights at every turn. In order to understand the dire position of Aboriginal and Islander people involved in the current native title debate, it is necessary to take a brief look at modern land rights history. Aboriginal communities have consistently compromised their legally recognised rights in order to achieve a peaceful and productive resolution of native title. Aboriginal sovereignty, a real issue in Canada and New Zealand, is not usually raised by Aboriginal negotiators in Australia. A treaty process, promised with solemn words and tears by Bob Hawke, has not been pursued by mainstream indigenous organisations.National land rights legislation, a real possibility in the 1980s, is no longer on the drawing board. The Mabo decision, which recognised the myth of terra nullius and also recognised native title as an extremely modest property right, was welcomed rather than criticised. The Native Title Act, which extinguished much native title without compensation, was accepted by many—although, I must say, not all—indigenous negotiators. The right to negotiate, a very limited right compared with the right of veto enjoyed under land rights legislation in the Northern Territory, was accepted as a compromise. The Wik decision, which found that rights of pastoralists to run livestock would prevail over ancient native title rights, was embraced rather than derided.Having given away so much over the last 10 years, one may have expected Aboriginal negotiators to simply reject any further curtailment of rights contained in John Howard's 10-point plan legislation, yet they did not. The National Indigenous Working Group on Native Title instead proposed workable amendments within the framework of the Howard changes, in a further gesture of compromise. In December 1997 they saw more than 80 per cent of the government's agenda passed in the Senate. Still they did not walk away from the process.When the Native Title Amendment Bill, round two, commenced in April 1998, the National Indigenous Working Group once more declared its willingness to compromise. However, indigenous representatives, faced with the near complete loss of meaningful native title rights, asked the Greens, the Democrats and the ALP to work against any further losses than those sustained in the Senate debate of December 1997. The process of compromising away indigenous rights had necessarily come to an end and, accordingly, the Senate and Aboriginal people, backed by millions of Australians, stood firm in April against any further losses.Unfortunately, when Aboriginal people rightly refused to compromise their rights away further, Senator Harradine and his advisers took on this role for them. While Aboriginal people wished to stand against the tide of Hansonism, Senator Harradine and the Prime Minister stuck the boot into the indigenous scapegoat. For this reason, we have returned to the chamber this week and are being asked to legitimise the grossest act of betrayal in the history of the Australian parliament. Unfortunately, the manifest loss of rights experienced by Aboriginal people in recent times seems to be lost on both industry and the media. In fact, the mining industry should be delighted that they have got away with making enormous profits extracting resources from Aboriginal traditional land for decades without consultation or compensation. They should further be rubbing their hands with glee that Aboriginal people have gained relatively meagre rights over the last 20 years.It is time for the mining industry to begin paying the rent that it has avoided for so long. The industry must accept that its previously unfettered rights to exploit now have constraints. If that necessarily results in a reduction of profits, then so be it. Whatever the `cost' to the mining industry of negotiating with native title claimants, it will be insignificant when compared with the cost of 210 years of indigenous dispossession. Do we really want a society where the profit motivated expectations of the mining industry prevail over the legitimate rights of Aboriginal and Torres Strait Islander people?As for the media, despite having reported on numerous land rights debates in recent times, its coverage of the recent native title legislation quickly narrowed to the point of absurdity. According to mainstream media, the parameters of debate lie between Senator Brian Harradine and the government. Consequently, the `native title solution' is viewed as a compromise between these two grossly discriminatory positions. This approach ignores both the historical scaling back of Aboriginal land rights and the significant community and political campaign seeking to preserve the native title rights recognised in Mabo and Wik.This simplistic approach saw the entire second-round native title debate effectively reduced to four Harradine-Howard `sticking points'. Major reductions in indigenous rights around dozens of other vital issues did not rate a mention. They had been deemed as non-issues by Senator Harradine, and the media followed his lead. Now it seems that the media is simply tired of native title. The story has run too long, there are no more dramatic pictures and it is impossible to fit 60,000 years of land ownership into a 10-second grab.There are no `wins' for Aboriginal people in Senator Harradine's compromise; there is the ever so slight amelioration of a tremendous loss. This ever so slight change to this tremendous loss is a shame for Australia. Let us just consider the rights that Senator Harradine and the government have stripped away. In the last eight months they have agreed to: the validation of tens of thousands of mining tenements which potentially breach the Native Title Act; the extinguishment of native title on thousands of non-freehold leases and tenures where it may have still existed; the upgrade of pastoral leases to full primary production, quarrying, or forestry status—therefore bringing about de facto extinguishment of native title—without the right to negotiate; allowing acts which involve the management or regulation of water to displaced native title rights, such as fishing, without the right to negotiate; allowing acts on reservations, including national parks, to remove native title rights, without the right to negotiate; allowing acts in offshore places to displace native title rights, without the right to negotiate; excluding the right to negotiate on native title land which lies in Australia's enormous intertidal zone; ensuring strict rules of evidence in Federal Court proceedings; striking out claims which do not adhere to onerous and expensive evidentiary requirements; and automatically reassessing all native title claims made since June 1996, and allowing state governments to have any claim ever made reassessed using the increased threshold test. By any measure, this is a litany of dispossession. The Greens believe that there is another way.Unfortunately, the Howard government has been so blinded by its own institutionalised racism that it has never been able to see that the only way to bring about `certainty' is for Aboriginal people to be comfortable with the native title process; and for Aboriginal people to no longer have the need to seek redress in the courts. It seems that this government is continually cutting off its nose to spite its face—and, on this occasion, Senator Harradine has handed it the scalpel.Of course, there are much better ways to deal with this legislation. From the very beginning of this debate, the Greens have been calling for the current legislation to be divided into a series of bills. Under this plan, the less controversial aspects of the legislation—such as the regime for establishing statutory agreements—could have been passed this year, serving to `cool down' the debate. The `sticking points' could have become the subject of ongoing consultation and negotiation between the government and indigenous communities.For such a process to provide real certainty and justice, the negotiation and consultation on all sticking points would have to be meaningful and comprehensive, and it would have to be carried out in good faith with all Aboriginal communities over a period of at least 12 months. The negotiations would have taken place at a `government to government' level, between Aboriginal communities and state and Commonwealth governments. Other stakeholders would have been brought into the process when basic agreement had been reached between Aboriginal communities and government. It is even possible that such a process could have laid the foundation for a treaty system—the only effective long-term method of reconciling the rights and responsibilities of indigenous and non-indigenous Australians.There is no guarantee that such a process would work neatly or smoothly. It may take decades to solve centuries of injustice. However, what is clear is that the consequences of not dealing with native title fairly and justly will see the debate rage even longer—and cause immeasurable suffering in the process.As Aboriginal people have been excluded from the negotiations between Senator Harradine, the federal government, the National Farmers Federation, the mining industry and the state governments—and because Aboriginal people are silenced in this place—I now will read a series of statements made in recent days by various Aboriginal people to the media. Hopefully, it will help to record for history the indigenous opposition to this sordid little deal of political convenience. Mr Noel Pearson stated:Aboriginal people have taken a mighty fall, a horrific fall in relation to the Mabo decisions. Ninety per cent of Mabo is now gone.Aden Ridgeway stated:The Wik amendments essentially mean that not only have indigenous people been locked out of the process, but we haven't been consulted and we haven't consented to anything that's been agreed to in this package.He continued:We are living in historic times where indigenous rights are in fact being taken away by a decision of the government and an independent senator who believes that it's his right to trade on indigenous rights and to deny us an ability to negotiate a beneficial outcome for our people.He then stated:Equality for black people in this country is an illusion and it's an illusion that's been created by a long white history that continues to perpetuate injustices against indigenous people.He further said:It is an unconscionable act on behalf of Senator Harradine to be trading on indigenous rights for political expediency and on the fear of a double dissolution race election.Gatjil Djerrkura stated:I remain concerned and dissatisfied with the fact that indigenous Australians were specifically excluded from the process of negotiation about our rights. The miners, farmers, states and territories were all consulted—our people were left outside in the Canberra cold.Gladys Tybingoompa from the Wik people stated:I said to him if you walk across or if you change your mind it will be a shame . . . not only now but in a 100 years. He is betraying us like Peter betrayed Jesus in the garden of Gethsemane. What is the disgrace for me is to be seen in the eyes of all Australians and internationally to dance with the man who holds the . . . key for the senate and for me to be fooled by him to put the traditional armband—a symbol of unity—on his arm.Olga Havnen stated:If Senator Harradine is forced into the situation where he has to endorse the government's 10 point plan then he will only be continuing the injustice and denial of indigenous rights.Wadjularbinna Nulyarimma stated:We say that for the past 18 months the pain and suffering that Aboriginal people have been exposed to . . . is such that serious mental harm within the definition of the genocide convention is established.Ray Robinson said:He—that is, Senator Harradine—was a hero to Aboriginal people six months ago, but he's turned out to be a gutless wonder. We would rather be faced with a double dissolution than have our native title rights taken off us.Charles Perkins stated:Mr Harradine and the Prime Minister came to an agreement and they never ever talked to us about it. How dare Senator Harradine negotiate without talking to the Aboriginal people. Here's two white people in parliament deciding what's good for the blacks again.Apart from maybe an initial explanation of what is wrong with the deal in further discussions in the committee stage, I will not be taking further part in the committee stage debate. I will not be giving any further credibility to this grubby deal.16:32:004997Cooney, Sen BarneySenator COONEYSF4VICALP00—We are elected to this place to represent the people of Australia, and we do that according to our conscience and to our best ability. Senator Harradine has been in this place for over 20 years, and I have always taken him to be somebody who has acted according to his conscience. Because people make a decision which goes against what we think is right and proper it does not mean that they act with malafides or act with viciousness or that they are grubby in their dealing. I am willing to accept that Senator Harradine has come to the conclusion that he has in good faith after having wrestled with a most awful problem for a considerable period of time.Today we are dealing with the next step in what has been a long road and what will continue to be a long road in the future. I want to make a couple of points about this. Eddie Mabo brought his case before the High Court to vindicate his rights. Sometimes there is confusion in this place as to what he was about. He was vindicating his rights. This is not about giving charity to any particular group of people; this is not about giving social security benefits to a set of people; this is about vindicating rights according to the law. It was on that basis, as I understand it, that over six years ago the High Court came to its decision in the Mabo case. It is interesting to read what Mr Justice Toohey had to say in terms of what that case was about. He said:The question here is whether extinguishment of the traditional title of the Meriam people without the compensation provided for in the Acquisition of Land Act 1967 (Q.) means that, by reason of a law of Queensland, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin or enjoy a right to a more limited extent than those persons. If the traditional title of the Meriam people may be extinguished without compensation, they do not enjoy a right that is enjoyed by other titleholders in Queensland or, at the least, they enjoy a right to a more limited extent.The reason that I read that is this: what Mabo was about and what Wik was about was giving equality to everybody before the law. There has been much spoken about in terms of some people getting a better go than others. That is not what we have been about: it is about giving equality before the law. We do that in two ways. We give substantive rights and we give procedural rights to people.Much of the criticism of Senator Harradine has been about procedural rights. Of those who have spoken so far, I am not sure how fully people understand the procedural rights. As somebody says, the devil is in the detail. I think Senator Harradine says that the angel is in the detail. I think the debate we have will be important, and it will be a shame if Senator Margetts does not engage in this debate. She has a very keen mind, she understands the issues and I think it would be a good thing if she contributed to the debates which are about to continue.I would like to quote another passage from the Wik judgment of His Honour Mr Justice Toohey. He had this to say:What emerges from the judgments in Delgamuukw is the emphasis on inconsistency between native title rights and rights created by legislation or by some administrative scheme authorised by legislation, that is, the inability of the two to co-exist. It is that inconsistency that renders the native title rights unenforceable at law and, in that sense, extinguished. If the two can co-exist, no question of implicit extinguishment arises and it is implicit extinguishment with which these appeals are concerned.I think this whole debate has gone off the rails over the concept that indigenous rights and rights held by pastoralists or by anybody else cannot exist together. That is what we should be talking about. It is not the opposition's position that one side should be preferred over the other; it is the opposition's position that everybody should get their rights according to the law. If the indigenous people are denied those rights, either at a substantive or a procedural level, then we will, and we do, rise to defend them. Equally, if other people's rights, pastoralists' rights, are affected, then it is not our position that they should be denied.The right to negotiate is at the centre of the problems—and there are problems—associated with this issue. What is the right to negotiate? It is a concept that we have all probably come across in our time. Recently, a fence was to be put up between my house and the house next door. If you cannot agree upon the fence, you can go to a court of law, but we, sensibly, negotiated a position. We got the rails on our side of the fence, and they got the palings on their side of the fence. Similarly, if there is a motorcar collision and you want to sue for the damages to your car and the other side says, `Your damage was not as extensive as you say it is, and, in any event, you are partly to blame; we'll go to court,' you can say, `No, we won't go to court; we will negotiate.' If you have got a right to some shares which you think are not being fully appreciated, you can take that to court or you can come to an agreement.That is what should happen here and what, in effect, did happen here with the 1993 act. There was a whole series of rights and people came together and came to an agreement. The Native Title Act 1993 is, in effect, terms of settlement which set out what the various parties agreed upon. The various parties sacrificed a lot, but they sacrificed it because they saw the merit in the agreement. The legislation we are presently debating is, and should be, terms of settlement between a whole series of people, but those people do not include the indigenous people, who are one of the most important of those groups who should be negotiating.I think Senator Harradine understands that, but he is not in charge of those negotiations; the government is in charge of those negotiations. The government should have had the indigenous people in. Even if these terms of settlement are better than they were, it is still a matter of outrage that the indigenous people were not consulted over what we are debating at the moment. If my dispute with my neighbour over the fence was settled by somebody other than me, of course I would feel upset about that. If a claim for damages by a person whose motorcar had been damaged at an intersection was settled without their having a say, of course they would they would be upset, no matter how good a settlement it might be.No doubt we will deal with section 43A in more detail later on in this debate, but, as Gareth Evans said in the House of Representatives, it is open to some considerable question. I think it ought to be debated at some length, but it does allow various state and territory bodies to decide what can be open for negotiation. That immediately means that there is not only the possibility but the likelihood of different regimes in different states over similar matters. That is a matter of some concern. It also requires the relevant minister to approve of what the state or territory comes up with. Depending on what minister you have, you may get different standards applied. Further, the whole matter can be looked at by the parliament, but only on the basis of disallowance. The parliament itself will not be able to correct any of the problems. I think that is a matter of some concern.There is provision for a judicial review of—I will read the legislation—`the decision to do the act'. The example given is that the judicial review could be by the supreme court of the state or territory. It would seem that a supreme court of the state or territory, or indeed a county court or perhaps a magistrates court, could look at the act which gives rise to the claim for compensation and the issue about which there will be negotiations. This would seem to add to the confusion that is already in the whole proceedings, and I do not mean just simply arising out of section 43A but generally. So there are some `great' issues—I use the word `great' advisedly—for us to talk about in this debate. Let us have the debate on the basis that this legislation can be improved.16:17:004999O'Chee, Sen BillSenator O'CHEEEU4QLDNP10—It is a great pleasure to follow Senator Cooney's statesman-like address, and I compliment him on it. I do not agree with everything Senator Cooney says, but he and I have known each other for a while and I think he understands that I will probably not agree with everything he has to say. His general sentiment about how the debate should be approached is commendable, and I say that now.It is important that this debate be conducted in a proper fashion for the simple reason that the eyes of this nation are watching what happens in this parliament. Ever since the original Mabo High Court decision came down, there have been concerns across not just rural and regional Australia but elsewhere in Australia as to how we resolve the issues relating to native title. These issues go to the heart of many concerns people have about how this country is to be developed. Native title imposes problems for people who may have nothing to do with a pastoral property or mining. They may be people, for example, who are trying to bring electricity to areas of Queensland or Western Australia who may need to traverse a piece of crown land to take across an electricity cable, a telephone cable or the like. These are the sorts of problems which native title has imposed upon Australia.In saying that, I must make a distinction between the original decision of the High Court in Mabo No. 2 and the later decision in Wik. I believe that the original decision in Mabo No. 2 was a perfectly reasonable decision within the context of the common law. I say that as somebody who was quite recently in the Torres Strait looking at some of the issues that have arisen out of the decision. There can be no doubt that the people of Murray Island were basically farmers who had `tenements' in the legal sense of the word. Those tenements had been held for a long time. By occupation and usage, they were theirs, and they were perfectly capable of being recognised in the common law.The problem becomes more difficult when one tries to impose that concept of land ownership on the mainland of Australia, where the farming of the land was not a traditional practice throughout most of Australia and where many of the people, by virtue of the circumstances of the land on which they found themselves, were nomadic. It has created very real problems. I believe they were problems that were not intended or contemplated in the original decision that the High Court made in Mabo No. 2.The High Court, having made the decisions in both those cases, has created property rights in favour of particular groups of people. It is blatantly naive, if not dishonest, for people to say that we can solve the native title problem by abolishing native title without compensation. However, that is what certain people have been saying. They have said that we can solve the native title problem by abolishing native title without compensation.The truth is that there is only one way in which that can be achieved. The only way in which it can be achieved is by having a referendum and abolishing the provisions contained in section 51 of the constitution, which say that no Australian citizen's property shall be appropriated without compensation on just terms. The danger of doing that to Aboriginal and Islander people is horrendous, but the greater danger to everybody in Australia who owns property is such that that approach can not ever be countenanced. An abolition of that section of the constitution would mean that nobody's property rights in this country would be safe, because a government could confiscate anybody's property without just terms compensation.There are people who believe that you can solve the problem simply by abolishing those provisions of section 51 and doing away with the fundamental protection of private property rights which exist for all Australians. I say to those people that they are wrong. If that were to happen, the people who would run the greatest risk are the graziers, farmers and people who occupy large areas of the country. It is always easy for somebody in the city to say to somebody who lives in the bush on 40,000 or 60,000 acres or whatever, `You've got a large amount of land. We'll just take some of it from you.'Without the protections contained in section 51, those people stand to lose the most. That is why that particular approach which has been espoused by some people cannot be accepted. It cannot be accepted by any right thinking Australian, and it particularly cannot be accepted by any right thinking Australian in this chamber or in the other place. The passage of the bill with the amendments proposed by the House of Representatives will be important for all Australians.Senator Cooney made a very sage remark. He said, `Everyone should get their rights according to the law.' I do not disagree with Senator Cooney, but the problem is that, if you accept that viewpoint that the law which exists cannot be changed, there is no point in having a parliament. The difficulties that we have are generally not difficulties which arise by virtue of the original decision of the High Court in Mabo No. 2; they are difficulties which arise by virtue of the law that was imposed in the Native Title Act when it went through parliament in 1993. The problem there is that the dealings of the previous government created additional rights or privileges over and above those contained in the decision of the High Court in Mabo No. 2.So, to my friend on the other side Senator Cooney, I say that it is not appropriate for us just to say, `Look, everyone should get their rights according to the law.' If that were the case, then of course the original Native Title Act should not have passed in the form in which it did pass. If that were the case, the previous government should merely have sought to formulate into legislation what was decided in the High Court. But they did not do that—they went further. One of those rights, which was created not by the High Court but by the previous government's legislation, is the right to negotiate. Here we have grave problems because the right to negotiate has effectively become an impediment to development in many regional areas of Australia. I take for example the Century mine in my own home state of Queensland, where a claim was made. The claim was not proved, but it did not have to be proved for the right to negotiate to exist. After painstaking negotiation, the company and the state government agreed to pay the sum of $90 million in compensation to a group of people who had not proven their claim. At that point it looked like this mine could go ahead. Why was it important for this mine to go ahead? It was important for this mine to go ahead so that we could create jobs for Aboriginal people at Doomadgee.In northern Queensland, Doomadgee is colloquially known as `Doom City'. It is known as Doom City because there are no jobs and there is very little likelihood of jobs because of where the place is located. It is not on a road from anywhere to anywhere else; it is in the middle of nowhere with no industry surrounding it. So the Century mine was the best opportunity for jobs for Aboriginal people in Doomadgee.It looked like the mine was going to go ahead when, all of a sudden, we had another native title claim preventing the construction of a bridge to ford a creek, thereby preventing further development of the mine and thereby preventing the creation of those jobs. This is the sort of thing which has flowed from the decision of the previous government, and this is the sort of thing with which those of us in the National Party and our colleagues in the Liberal Party have been trying to grapple. How do we get a decent outcome and generate jobs, development and employment?It is quite obvious that, under the right to negotiate regime that exists at the moment, that is not possible. Our objective is to replace that right to negotiate regime with a set of equivalent rights so that we have what approaches equality before the law. That is very important. It will mean that everybody is treated alike in respect of their property rights or their claim to property rights, irrespective of the colour of their skin. That, I think, has to be a big step forward for everybody: a step forward for this nation and a step forward for the people who live on Aboriginal communities like Doomadgee whose only chance of a job will come from development, principally in the mining industry. I congratulate the Prime Minister, Senator Minchin, Senator Harradine and others, like Mr Tim Fischer, who have been involved in the negotiation process.I make another observation for those in Queensland who are interested in this matter. The passage of this legislation will mean that we can give effect to the original intentions of the High Court in Mabo No. 2, where there were certain leases which basically created exclusive possession. We can free those leases from the prospect of native title claims, which basically means 90 per cent of the pastoral leases in Queensland and all the miners' homestead leases. When we free those leases from the prospect of a claim and the uncertainty that creates, it will ease immensely the tensions between Aborigines and other people in this country—and that is a good thing. Where appropriate—where it is found that native title may have existed—compensation will be paid in accordance with the constitution, so everybody will be treated in accordance with the constitution in an equal and fair fashion. That is what we should be here to achieve, and that is what we will achieve. It has been a long, hard road. Some of us have been trying to get this legislation right for a long period of time.I make one observation in closing: in addition to fixing the right to negotiate problem, in addition to sorting out the difficulties with pastoral leases, miners' homestead leases in Queensland and so on, there are still a few things that the parliament needs to do. When I stood on the other side of this chamber in 1993, I was one of the few people in the Senate to argue that the Native Title Act was—and still is—fundamentally flawed, in so much as everybody should understand that, where native title is found to exist over a piece of unallocated, vacant crown land and the native title rights are found to be rights which grant exclusive possession, this act as it stands does not give individual claimants who prove their case a right to actually own the land, nor does this act give them a right to deal with the land, because this act is flawed in its paternalism.It creates a situation where native title can only be owned by a corporation and, for `a corporation', one should read `a land council'. It can only be owned by a corporation and cannot be sold. So there is no opportunity for private Aboriginal land ownership. There is no opportunity even for the elders of a tribe to hold the land on trust for the rest of the tribe. That is why this legislation is fundamentally flawed.I hope that, at some stage in forthcoming years, I will have the opportunity to stand in this place and watch amendments pass through which will mean that native title can be owned by private Aborigines and can be dealt with as they choose so that they have in their own hands the opportunity for economic self-determination. Until that is achieved, I still think that there is work which is undone. But the work which will be done in this chamber this week will be an immeasurable step forward for all Australians and, for that reason, I commend the motion before the chamber.17:01:005001Crowley, Sen RosemarySenator CROWLEYZF4SAALP00—Just before I start my contribution, I would like to pick up on a couple of points made by Senator O'Chee. He makes the point that we parliamentarians make the laws and that we can change them in parliament—and that is right and proper too. But we cannot legislate now to undo many of the decisions made under previous laws.If, for example, rights to native title are extinguished, any change of the law in the future will not be able to revive those rights. Once extinguished, they are gone forever. It is just like the situation concerning the stolen children: we are not able even by changing every law of the land to give the stolen children back their parents nor are we able to give the parents back their children. So Senator O'Chee is correct in suggesting that it is our responsibility to legislate. That is what we are elected for, amongst other things. But we also need to reflect as we go. As we make the laws, our thinking must not be, `It is all right. We will do something now because we can always change it or correct it later.' We ought to be attempting at every opportunity to get it right, particularly in the sense of ensuring justice for all. This bill is called the Native Title Amendment Bill 1997 [No. 2] . It is not called the pastoralists rights amendment bill; it is not called the miners rights amendment bill; it is not called the state premiers amendment bill—it is called the Native Title Amendment Bill. Yet the natives—the Aboriginals, the people to whom this bill refers—were not party to negotiations.Can you imagine what would happen if the Prime Minister, Mr Howard, and his team sat down to negotiate with the Aboriginal people about pastoral land rights without any discussion with pastoralists? Can you imagine what would happen if the Prime Minister decided to negotiate with Aboriginal people about miners' rights without speaking to miners or without discussing it with the states? But in this case a deal has been done without any regard or discussion with the people involved, the people who are actually referred to in the title of the bill. That is quite extraordinary.For those opposite to talk about getting a settlement at last or making sure that we are doing the right thing, the very simple question has to be asked: how can you possibly claim that when you have excluded from the decision the very people this bill particularly is concerned about, the very people whose rights are at the heart of this matter, the very people who have over the centuries—and certainly over recent years—portrayed a remarkable ability and goodwill to negotiate? What we have here is a very cynical exercise by the Prime Minister to ensure there was no need, despite his rhetoric to the opposite, for a double dissolution. Mr Howard has been very slow to understand the state of play in this country. He has been very slow to realise what in fact was the agenda of the One Nation Party. He said that at last we had a restriction from political correctness and at last people could say what they really felt. He saw no evidence at all that what was being said was nothing more than a campaign for discrediting Aboriginal people and Asians who came to this country—what is known in shorthand as racism—picking out and scapegoating two groups of people in a cynical exercise to justify other things that you might want to argue. Our Prime Minister failed to see or deliberately sought not to see that what he was doing was a failure of leadership.It took the decision in the Queensland election and, even then, it took the people from Queensland, particularly the National Party senators, to persuade the Prime Minister to think again. They argued that, if he did persist in this double dissolution, he and his cohorts would suffer an ignominious wipe-out. So there was a change in the Native Title Amendment Bill not because of a preferred view of what is now being proposed but because any words at all would be sufficient for the Prime Minister to claim, as he has already claimed, `Oh, what a relief, there is no need for a double dissolution.'According to the news—Senator Harradine might nod that I am right or wrong about this—just to ensure it was actually stitched up, Senator Harradine has signed a document to guarantee that what he said he would do he will do. I think that must be a bit of a poke in the eye for Senator Harradine who has not been known to make up his mind and promise honourably and then rat out on that deal. I should assure people listening that I understand from the waving going on over there, Senator Harradine, that you have not been forced to sign?6H4HARRADINESenator Harradine—No.ZF4Crowley, Sen RosemarySenator CROWLEY—You haven't signed?6H4HARRADINESenator Harradine—No.ZF4Crowley, Sen RosemarySenator CROWLEY—Nothing is signed. Those people who have got those bits of paper: you might have to take it up with the newscasters who are saying you have signed.Mr Howard has failed as a leader. He has failed to provide guidance, he has failed to provide vision and he has failed to demonstrate any principles. One of the things that quite astounded me in the lead-up to the introduction of the so-called 10-point Wik plan was the amazing response from the community. I can recall church leaders and community groups of all persuasions speaking out against the government's position which they knew to be racist. They recognised it was a time to give legal way to Aboriginal people as a result of the Wik decision and to provide in the law the legal right to negotiate. They also saw that the Wik bill, as proposed, was not going to do that and that it was going to be racist.What did Mr Howard do? He took the church leaders to task. He accused them of being ignorant or ill-advised or not knowing what they were doing. He took them on and had a fight with them. He accused them and abused them of scaremongering about the effects of the Wik legislation. Fancy suggesting that all of those church leaders were wrong—not a very smart approach. The Prime Minister's failure as a leader is one thing; his failure as a negotiator is another very critical point that comes back to why I think this legislation needs to be very severely criticised.Negotiation involves all parties. It involves open discussion and goodwill, and it is about reconciling different views. It is certainly not about starting off with a fixed view and then accusing and abusing everybody who disagrees with you of being wrong or bad or anything else. It is about the give and take of people sitting down and knowing they have an equal opportunity to contribute to discussion. With these proposed amendments, we have a deal, not a negotiation—a deal done to avoid a double dissolution.But this legislation has something else that I certainly pick up from a mile off. It may well be because of my being a woman in this society who has fought for rights and who has contributed to those battles by women over many years. I can smell paternalism from a mile off, and this is paternalistic and patronising: `We do not need to talk to Aboriginal people, we know what is best for them. We know what will solve our problems. We know that they will be happy with this.' This is particularly offensive and it is particularly patronising. It is particularly diagnostic of the government and the leadership we have from Mr Howard and Senator Minchin, who has had the carriage of this legislation.Quintessentially, it is not what negotiation is about. Negotiation is not about doing things for people. It is not about signing off on a deal to which people were not parties. It is not about doing what you know or think is best for others. The real understanding of human rights and the rights to negotiate is that you have to trust that the other people have equal claim to have their own voice heard. You may start off disliking enormously what they say, but you cannot presume that they have a lesser right or a lesser capacity, and that is what these negotiations suggest. That is the thing that troubles me most about this legislation at this moment. There are all the other criticisms that can be made about it, and I will certainly mention those briefly in closing, but to have discussions on a Native Title Amendment Bill to which no Aboriginal people have been a party is a particularly ignominious contradiction in terms.It is evidence yet again of the absolute failure of Mr Howard as a leader and as a negotiator. No wonder those in the Liberal Party do not understand what the right to negotiate means. They do not know because they have never done it themselves. Senator O'Chee gave us the example of the Century Mine and said that the right to negotiate is an impediment, and then illustrated exactly why it was not the right to negotiate that is an impediment. The claim or the possibility of yet another claim might be an impediment but not the right to negotiate.There are many examples around this country—certainly some in my own state—where Aboriginal people, given the opportunity and being able to participate in negotiations, have betrayed a remarkable generosity and ability to understand exactly what the issues are, how far you can push for your side of the argument and where you have to let go and concede a little. It is time we stopped practising paternalism and patronising behaviours.The amendments proposed to this legislation are not a solution to the challenge in front of us. They are unworkable and they will result in court cases, court cases and more court cases, long delays and costly litigation. They will create uncertainty and they will be a feast for lawyers. It is precisely the contrary outcome to that which the Prime Minister said he wanted. He wanted to create certainty and to give the people involved in these concerns—Aboriginal people, miners, pastoral lease holders—some certainty and some expectation and understanding of the future. I do not have any sense that the amendments to this legislation dealing with the right to negotiate will deliver any of that. Nobody who has spoken so far or who has advised me gives me any comfort on that matter.The bill is also a promise of an open cheque to the states for compensation for future extinguishment. Minister Tim Fischer was going around the country early on saying that the Wik plan offered bucket loads of extinguishment. That was bad enough, but these proposed amendments say that not only will there be bucket loads of extinguishment but taxpayers will pick up the tab.Over the last little while there has been something that we can take some comfort from, and that is the community at large are not persuaded by Mr Howard on Wik. They see that there is an unfairness here. Some polling suggests that the community do not really believe Mr Howard's government has the solution or the way to go ahead. They are very concerned about all sorts of things affecting their lives, but they are certainly clear that Mr Howard is not the person to trust with a lot of those problems. Comfortable and relaxed they are not. Confident in Mr Howard they certainly are not. It is a matter of some satisfaction to those of us who believe in the basic decency and goodwill of the people of this country that the majority of them know that this solution is not fair. You do not sit down and negotiate with people when half the people involved in the negotiation are not at the table. It is an indictment of the Howard government that the way they come at a solution is by doing a deal excluding the main players. That is a fair summary of how they are dealing with the people of Australia.17:16:005004Brown, Sen BobSenator BROWNQD4TASAG00—One hundred and fifty years ago New Zealand signed a treaty with its indigenous people and reserved six places in its national parliament for indigenous voices. Neither of those things pertain in Australia. In Canada on 1 April next year the state of Nunavut will be established comprising the eastern half of the former Northwest Territories. It will be a state for 17,500 of the total population of 22,000 Inuit people and they will be in control of all their affairs, much like any state in Australia. Moreover, this state will be two million square kilometres in size, that is, one-third again as big as the Northern Territory in Australia.We are so far behind, so far divested from that sort of recognition of the rights of the indigenous people of this country that the only person I have heard mention this, other than the Greens, in recent public discourse has been Pauline Hanson of One Nation, who raised it simply as a scare tactic. What has become the political reality, the historical event and the recognition of indigenous rights in Canada has become the unspeakable thought in Australia under this unjust government and this unjust law that we are dealing with now. Instead of looking at such possibilities for the great indigenous people of our country, we have a minister who rails about there being up to 100 hours given over to this debate about their future, which cannot be divorced from the future of the other 18 million or so Australians. What is 100 hours to 100 years of divestment?What sort of country have we, in particular what sort of government do we have, which follows the stealing of the lands of the indigenous people at the point of a gun barrel in the first 1½ centuries after European invasion or settlement of this country and the legalised stealing of children from the first Australians in the middle of this century with now, in 1998, the stealing of the rights of the indigenous people of this country? And it is not being done by maverick and malevolent individuals, not even by the scriptured approach of the do-gooder, but by the machinations of the government of the people of Australia—a government which said it was here to work on behalf of all the people. Here we are in this historic situation, stealing the rights of indigenous people.Senator Harradine challenged this committee a little earlier to show how in any way indigenous people were having their claims to native title extinguished. He knows that that is a deception. He knows that what is happening here is a recognition—because you cannot get around the constitution and the courts—of indigenous people's right to claim their land followed by, in this malevolent legislation, the taking away of the right of the indigenous people to have a say in what happens on that land—recognise the land as belonging to the indigenous people but then disempower them through the mechanism before us in this Senate.Senator Harradine says that the bill does not contain extinguishment other than was agreed to by the Labor Party. I cannot argue against that ne're so well because everybody has agreed that some 90 per cent of the rights of the indigenous people have already been taken away by the serial passage of stealing legislation in this parliament, objected to by the Greens and the Democrats alone. So in all those things which will change the face of the indigenous people's land and transmogrify the natural face of northern Australia in the coming 100 years, we will see the indigenous people helpless before the law to have a say.When it comes to broadacre cotton crops on these leasehold lands; broad scale plantations; dams across rivers; canals tapping those dams; woodchip operations in the woodlands; marinas, wharves, harbour facilities or other so-called developments in the intertidal zone; deep sea fisheries or oil derricks in the indigenous people's seas, they have already been divested of their rights to have a say. What they are left with is a right to a say in holes in the ground, in mining. What is happening in this legislation, this Howard-Harradine pact, is the stealing of even that last right.When Senator Harradine was weighing up his role in this and looked to the Good Book, which he holds in such store, he must have been transfixed by the little text which says: `The first shall be last and the last shall be first.' So the first Australians shall be divested and the last Australians—the wealthy, the miners, the already rich pastoralists with other developments in mind, the resource extractors—shall be first. That is what is happening here. `But,' says Senator Harradine and Senator Minchin—in this unholy alliance brought before us and against which we face defeat by dint of their numbers—`we're going to allow an alternative for the states to set up an apparatus which will look after the rights of the indigenous people.' What rights are those? When you look into it, you find that the indigenous people end up—as the Prime Minister said on the 7.30 Report last week—in something like a mining wardens court.As an environmentalist I can tell you that, when you go before the average mining wardens court in this country, you go there with no hope: those courts are loaded with people who are pro-mining and who are not well versed in other values that they will have to deal with. If the Prime Minister of our country and Senator Harradine—who in his own blinkered vision fancies he has the destiny of this nation on his shoulders—have their way, what will happen? If they cannot understand the values, as demonstrated by the Wik people dancing outside this parliament to exemplify their beliefs, and if they cannot understand the relationship, including the spiritual relationship, of the indigenous people of this great country of ours with their land, there is a snowflake's chance that a mining warden or a so-called `independent' tribunal is going to listen to, understand or give weight to those extraordinarily important values. In any case, if a wardens court or an independent tribunal finds in favour of indigenous people in the circumscribed way in which they can argue for traditional values and sites, this legislation says that the state minister for mines can then say, `In the interests of our state, I overrule that finding.'This is a travesty. I do not know how Senator Harradine is able to sleep at night. I do not know how our Prime Minister has been able to deceive himself into believing that this is a just outcome. I do not know how either of them—or any of the people who sit opposite—can believe that this is the end of the story, except that they may believe that the indigenous people are somehow different from other people, in that they will accept injustice and will turn their backs on the stealing which continues through 1998 into the next century at the behest of the powerbrokers in this place working on behalf of the resource extractors.Let us look at a little case in point: the current controversy over Jabiluka in the Northern Territory. Back in 1974—if we want to put a benchmark on this; Senator Harradine pointed to this in his stand on this very matter at the end of last year—Justice Woodward, as part of his royal commission findings, observed that, if you do not take into account the right of indigenous people to a veto on mining, you are not taking into account their land rights. How far backwards have we gone since 1974? We have the prospect in the Northern Territory of indigenous people—to the last one of a clan with traditional ownership of their land—not only being arrested if they trespass onto their own land but facing punitive penalties—a minimum of two weeks in gaol; a maximum of seven weeks in gaol—if they obstruct machinery moving in and destroying the country that they love so deeply.Because things have slid so far over the last quarter of a century, we are in the parlous situation in this country where it is now thought that the spiritual rights of indigenous people, a veto over their lands and the prospect of indigenous states in Cape York, the Kimberley or Kakadu-Arnhem Land are not even on the slate for debate. All that is on the slate is how government steals more from our first people. It is a calamitous situation, a disgraceful situation. I, like other speakers, believe that neither Mr Howard and members opposite nor Senator Harradine will ride any wave of history here except what will be seen as infamy.17:31:005006Bartlett, Sen AndrewSenator BARTLETTDT6QLDAD00—I rise to add to the Australian Democrat contribution on this message from the House of Representatives putting forward some amendments to the Native Title Amendment Bill 1997 [No. 2] . This message from the House of Representatives only appeared following the message which came from my own state of Queensland which the Queensland electorate sent to the conservative parties less than four weeks ago. That message from Queensland has obviously very much influenced the production of this message from the House of Representatives which the Senate is dealing with today.As Senator Brown indicated at the start of his contribution, in comparing how we have managed to deal with this very fundamental issue that goes to the origins and fabric of our nation and society with other nations such as Canada and New Zealand, we are not only a long way behind but also going further and further backwards. That is a matter of some sadness. It is something that I addressed in my previous contributions to this bill the first and the second time around, so I will not go into that in detail this time; nonetheless, it is worth reiterating that this is a missed opportunity which we have failed to grasp. In fact, we have dropped the ball so completely that we have actually relegated ourselves to another division, which is a great tragedy for our whole nation and a particular tragedy for the indigenous people of this country.Coming from Queensland and having endured the strange experience that was the Queensland state election, I saw that native title so clearly drove the minds of many of the participants in the lead-up to it. But it was interesting to see how little impact and how little role it had in the Queensland election. I think it is fair to say that to a very large extent native title, the Wik decision and the Wik legislation were not a major issue in the Queensland election. It is certainly accurate to say that it is not an issue that delivered any electoral benefits to the coalition, which is poetic justice. If you analysed the swings across the state to the different parties in different areas, those parts of the state that one might say are the major native title affected seats—those seats that cover a large chunk of Queensland and have the vast majority of mining and pastoral leases—did not deliver any electoral premium for the coalition or the National Party. In fact, One Nation also had less influence and less support in those supposed native title focused seats than they did in the coastal strip of the state. That is a very significant outcome and it is an interesting statistic to point to.It highlights the great folly that the coalition has committed in whipping up fear and falsehood throughout the community in relation to this issue in the hope of gaining some electoral benefit, which obviously it did not gain. Those deceptions that were generated just added to the seeds that provided the harvest that the One Nation Party gathered in Queensland. It obviously has caused the coalition to take pause in relation to that. To an extent, I suppose, any improvement on the original legislation is better than nothing, but it is still something that is far from acceptable to the Australian Democrats. The legislation that has been passed by the Senate on the previous two occasions also goes far too far in removing the rights of indigenous people. It is not much of a choice, and it is a great shame that we are put in that situation.It is a great shame also that so much has been focused on the negativity of this issue. As I said in my previous contributions on this bill, it is a great shame that native title has somehow been portrayed as a bad thing, as a major problem and as a huge hurdle for this country, when in fact it is a fantastic opportunity for us to move forward together as a nation. It is a shame that that positive aspect is not going to be highlighted in this debate. It is something that is particularly pivotal in relation to the right to negotiate which is a critical component of native title. When we get to that section of the amendments relating to the right to negotiate, I hope to be able to focus a bit more on how crucial it is to positive outcomes for our entire society that the right to negotiate is able to operate.Inasmuch as I understand the arrangement that has been arrived at between the govern ment and Senator Harradine, it provides an ongoing role for the Senate to monitor some of the procedures of the states and provides a disallowable instrument, which obviously gives an ongoing role for the Senate in seeing how states deal with that. I think that highlights starkly how crucial the choice is in the Senate at the next federal election. As everybody knows, there is a real prospect—whether it is a double dissolution or a half Senate election—that the One Nation Party may be in a position to hold the balance of power in this chamber. If we have that party in that position, I do not think anyone needs to use too much imagination to imagine what sort of view they would take in ensuring and properly monitoring the protection of the rights of indigenous people in relation to the acts of state governments.It does again highlight the stark choice, with regard to that balance of power contest in the Senate, between the One Nation Party and the Australian Democrats as to who will have this overseeing role if we are, as seems probable, going to end up with an amended bill going into law. As much as the Democrats do not support that bill, it shows how crucial it is that there be some ability for the Senate to ensure some protection of whatever rights remain for indigenous people in relation to the operation of the states.In my home state of Queensland I can certainly say that we will be watching with great interest the actions of the new Labor government in Queensland and the new Premier, Mr Beattie. His party won seats at the last election on the preferences of Democrat voters, not in any small part due to some of the commitments that he and his party gave on a number of issues. Whilst his commitments on native title issues did leave a number of things to be desired, many Democrat voters who did give the ALP their preferences, which were so crucial in a number of seats, would have done so on the expectation that the ALP would deliver some justice and would stick to the commitments they made. I know that the Democrats and indigenous groups in Queensland, who also received commitments from the ALP, will be looking very closely at how they do stand up to their commitments and do deliver on what they have promised in relation to providing some justice for indigenous people. As this legislation does throw responsibilities back on the states, that will become all the more crucial.A lot has been said in this debate about intolerance and racism. A lot of that has unfortunately come further to the surface, not just with native title but also with other issues such as immigration and multiculturalism. Our inability as a nation, and particularly the inability of this government, to deal with differences of perspective, to deal with differing outlooks, to deal with balancing the needs and requirements of different groups in society and to deal with diversity has been highlighted so crucially and so fatally in the government's approach to this legislation.But it is not just about racism in the sense of direct intolerance of other people based on the colour of their skin; it is about the racial privileges that have been provided to so many people in society. It would be no particularly distorted reading of history to state that this nation and its wealth were built, to a large extent, on the land and on the labour of indigenous people. I have benefited from that personally. I have received a more privileged life because of that, as virtually all Australians have. But in some people's minds the decision on native title in the High Court has potentially altered that balance.Some people had the perception that their privileges were under threat because of this change of balance. I think this is what was driving Mr Howard when he complained that the pendulum had swung too far towards indigenous people. That is quite an absurd statement if one looks at the reality of life for indigenous people. Nonetheless, I think that was probably what was driving his statement; he felt that indigenous people might be getting a few too many rights and that that might mean the rest of us were losing a few of ours. That always makes some people nervous.Of course, this is a completely wrong view, as the High Court's decision in the Wik case showed. Rights are coexisting and, where there is a conflict, the rights of the pastoralists in that situation prevail. I know that has been said a million times before in this debate, but it is something I cannot help but keep repeating. That decision said, `We recognise the indigenous people have some rights here but do not worry because, if they cut across yours, you win.' Yet somehow that is still not good enough for so many people, and that is something I find astonishing. If it was not so tragic it would be laughable.I will wind up my contribution there because I do not want to unduly delay further consideration of the amendments. I will come back to some of those issues further in relation to the right to negotiate when we get to that section of the amendments.17:43:005008West, Sen SueSenator WEST1X4NSWALP00—It is with a great deal of sadness that I rise to speak on this committee motion in relation to the message from the other place. This is the fourth time we have debated this issue in slightly over four years. I was here for the debate in 1993 and I have been here for the last three debates on the Native Title Amendment Bill. It is with sadness that we have to be going through this again because of the obvious pressure that the Prime Minister, Mr Howard, has placed on the honourable senator from Tasmania, Senator Harradine. It is with sadness that we are here because this government does not realise it should be a government for all people. Yet, I seem to recall, after the last election, that Mr Howard promised he was going to lead a government for all people. He wanted us all to be comfortable. Given that when this last round was negotiated the indigenous people of this country were excluded from those negotiations, one has to wonder about the Prime Minister's definition of `all people'.If the indigenous people were left out of the negotiations that took place, then on my reading of it he is not governing for all Australians. If anybody wants to tell me that the indigenous population of this country were not here in 1788 or were new to the area, I think they have a very misguided view of history. If someone wants to tell me that indigenous people get a whole lot of special privileges and are better off than the rest of us, then I want them to show me. I want them to show me their mortality figures. I want them to show me the life expectancy of an indigenous person in this country. I want them to show me the number of indigenous children with ear problems, chronic hearing problems and, therefore, problems with learning. I want someone to show me that they are better off than their white counterparts.We know that the life expectancy of the indigenous population of this country is considerably less than that of the white population. We know that the number of children who have chronic ear problems and hearing problems in the Aboriginal population is far greater than that of the rest of the population. We know from research that children with hearing problems will always have learning difficulties. This is not, in my view, governing for all people. It is not being caring and it is not being sharing. It is excluding people. Just as the One Nation Party would seek to exclude certain groups, it would almost appear that the Prime Minister has sought, when he negotiated this agreement, to exclude the indigenous population of this country. I think that ill behoves the behaviour one would expect from the Prime Minister of this country.We were told that it was the 10-point plan or nothing. The Prime Minister got the vast majority of the 10-point plan, and he was adamant that if he did not get the whole 10-point plan he was not going to pass the legislation. We saw that happen late last year and we saw it happen in April. What has brought about this change in the attitude of the government? Why have they crept away from their previous statements? Does it have something to do with the fact that, two years ago, the Prime Minister failed to lead this country and make a very firm and definite statement on the policies of a party called the One Nation Party? Has it got something to do with that? I will bet that it has something to do with that. It also has something to do with the fact that in the recent Queensland elections we saw Mr Borbidge, the then Premier, say that it was going to be a Wik election. And what happened? The two winners out of that were the ALP, with our policy of consultation and the right to negotiate, and the One Nation Party, with their total exclusion of any recognition of indigenous people.What is going on in the mind of the Prime Minister? He is not governing for all Australians because he has not included all Australians in the consultation process that has taken place, and he has been spooked by the electoral results of One Nation in Queensland. I would suggest that this is an indication of weakness in ruling and failure to stand up to somebody who is preaching policies and propaganda that are inaccurate and divisive. It is a failure to govern for all people.We know from media comment last Friday that the New South Wales Farmers Federation still have concerns about these amendments, and I think they are very wise to have those concerns, because no certainty will be created by these amendments. This morning constitutional lawyers and lecturers in constitutional law—people like Tony Blackshield—were commenting that they had grave doubts about the constitutionality of these amendments. What does that mean for people? It means the greatest fear of the New South Wales farmers and every other farmer and mining company in this country would be upheld. If there is any hint of a challenge to constitutionality, it will be in the courts so fast that people will not be able to blink. That is why I think New South Wales farmers have every right to be concerned.I know that a lot of scaremongering has gone on in the western areas of New South Wales, and a lot of it has been done by my conservative colleagues from the National Party—maybe not the National Party members of parliament but certainly a number of their constituency and their members. This scaremongering is something that people should be ashamed of, and it was going on before. I have heard allegations that pipelines will not be able to get through. I had raised with me a lot of concerns and allegations that the pipeline via Marsden to Dubbo would be subject to claim, that it would not be able to be negotiated and that it would all fall over. What happened? Wiser heads prevailed and there was consultation. It was resolved, the pipeline is proceeding and development in the area will not be hampered. I have been told of other areas where native title is the bogeyman and the reason why development did not go ahead, was not going ahead or was slow in going ahead.Let me tell you of some of the reasons for developments being slow to go ahead. One case—and I do not want to identify the particular one of which I am thinking—involved the purchase of an additional lease. The owner of the original lease decided that, because this piece of land was basically the only piece the company could buy, he and market forces would prevail, he bumped the price up to an unrealistic amount and the company refused to pay. Who got the blame for that: the person who was selling the land? No. Initially, to my face, I was told that it was because of land rights.We then had the situation of there being an alternative piece of land. But this development had the potential for there to be odours which would have impacted upon another industry in the area. The group that had the potential to become involved raised its concerns legitimately with the EPA, the Environmental Protection Authority, which then became a cause for delay. Who got the blame for that? Native title.Twice with one development I have been given the garbage that, `It's native title that's holding it up.' It is only after peeling away the layers of the onion that you discover the truth to be that it is not native title at all, that there were a whole range of reasons causing the delays.Some of the consultations I had with those associated with the land development I have used as an example were held in November of last year—this development is in the Western Division of New South Wales and requires a change of land use—but correspondence from this group seeking my support for a change of land use for the proposal was only received by me about three or four weeks ago. Native title has not been the reason for that development being held up for that length of time, but I would bet that, if I were to go out into that region, not the group that is involved but other people would tell me, `It's native title.'This attitude being promulgated within the community is resulting from scaremongering by the conservative forces. I do not know who the conservative forces are—and perhaps those of the coalition will deny that they are associated with them and tell me that they are One Nation people, I do not know—but I can tell you that there is so much misinformation, so much scaremongering, out there that it is an appalling situation. I think what is needed is some calmness, some consultation and negotiation and some commonsense. To date, they have not prevailed.I also look at some of the provisions in this act and think of the stolen generation. They and those who were locked off their lands will be given an opportunity—there is an extension there—to compromise so that people who have been affected can gain registration for title. However, that has to be done through the Federal Court. This, of course, means time, money and a number of other things like availability of knowledge. This is the white man's system. It is just putting up a whole heap of barriers and I think it is an appalling situation. Before lodging a claim, those people must wait for a notice of mining or development on their land. The state based processes will be long finished and the development under way before they are even registered. Therefore, there is a huge incentive for blanket claims to be lodged now, those claims being caught up within a system that the government is supposed to be freeing up. But there is this incentive.We have heard also that the states will be able to introduce legislation providing various courses that can be taken. But what does this do? If in the states of New South Wales and Queensland we have two Labor governments who feel that consultation and the right to negotiate are very important, and they do not have the national standard, do we run the risk of the other, conservative states running around and perpetuating myths and saying, `It's easier here in my state; come to my state'?We are trying to be a national parliament. We are trying to be a national government. This is a national problem. It is not a problem that should belong with the states. The federal government should be seeking to guide. The Prime Minister should be acting as he promised he would. But, as I have clearly pointed out, he is not: he is not being a Prime Minister for all of Australia—and he stands condemned.17:58:005011Quirke, Sen JohnSenator QUIRKEZS6SAALP00—Just before I get into the swing of things, I would like to take up one point Senator Bartlett made a short while ago. He was sending a warning to Premier Beattie in Queensland that they had better keep to their promises—and I hope that Premier Beattie does keep to whatever promises he has made up there. What has been invoked, of course, is that all these Democrat preferences up there have a lot riding on them.Senator Bartlett must have been looking at different seats from the ones I was looking at, because I do not think it would take very long to satisfy Democrat preferences in the recent Queensland election. Quite frankly, there were not too many of them. I only looked at about half of the seats up there, so perhaps in the other half of the state the seats are different from the ones I looked at, but I could not see them at all. In some areas, there were none at all. As I understand it, the vote up there for the Democrats is horrific.I do not want to speak for too long on that topic this afternoon in this chamber, because that is not really germane to the main part of the Native Title Amendment Bill 1997 [No. 2], which is before us, but I do think Senator Bartlett ought take note of the fact that he is not talking with a great deal of clout up in Queensland right now. And I must say that he is probably a relieved Senator Bartlett because, as I look at it, he has another three years or so before the next federal election, assuming that the Prime Minister (Mr Howard) does not go for a double dissolution election. It is Senator Woodley who will face the fire this time. It will be interesting to see exactly how that goes because, of course, that is really what this debate is all about. This is about trying to get the Prime Minister out of a mess of his own making.I once worked in a place where the person who ran the enterprise made every mistake known at that stage that was possible to make. His name was John as well. I remember giving him some advice one day. I put my arm around him and said, `John, I don't know how one man can make as many mistakes as you.' I knew that I was reasonably safe because the board of governors was not going to sack me. I suggest that a few of those opposite ought to go and do the same to the Prime Minister. They ought to say to him, `Look, Prime Minister, the next time you get yourself in a sticky mess, do not try to pull a rabbit out of the hat like a GST or a Wik bill. Do not try selling off the rest of Telstra thinking that they will be cheering from the rafters,' because they are not.I think it is rather interesting that this legislation has come back here. I would like to say that it had to do with honest and sincere attempts to try to solve the problem. I suspect from Senator Harradine's perspective that is true. I think Senator Harradine really was keen on solving what is an extremely difficult problem. However, I suspect that the government had other motives. They had some which were thrust on them very quickly on 13 June in Queensland when the horror story started coming down over the border about what was happening there and what was likely to happen, in particular, to at least the National Party part of the coalition. Mind you, the Liberal Party did not do too well in Queensland either, but at state election levels one suspects in Queensland that the Liberal Party has never done too well since the Joh Bjelke-Petersen regime. Certainly there was no doubt that the coalition in Queensland took a fair battering.There is also no doubt that the One Nation vote in Queensland was much more substantial than anyone thought it was likely to be, even a week out from the election. There is no doubt that, if the One Nation vote in Queensland is repeated in other states and at the federal level, we will see a significant new party that will get considerable representation especially in places where proportional representation is the voting method used to determine the seats in whatever house that might be. If you look around the countryside, the sorts of opinion polls that are coming in indicate that in a half-Senate election One Nation is likely to pick up considerable support in a few states.I suspect it is possible they may even pick up that support in my own state, in Western Australia, in New South Wales and in Queensland. From the looks of the opinion polls that have been coming out recently, it is not without some concern that that may even spread to Tasmania. I think it is only in Victoria that One Nation is probably not sufficiently strong enough in a half-Senate election to get very far. It may well be that in parts of Victoria One Nation preferences may determine who the House of Representatives candidates will be. Certainly in a half-Senate election, where the quotas are not quite double but are much greater—14.3 per cent as opposed to 7.6 per cent—it is going to be a lot harder for One Nation to break into the Senate. It will not make much difference to a House of Representatives election, but I do suspect that in a double dissolution election, with the concentration on One Nation, with the way that Pauline Hanson's party has at this stage become the plaything of the media, they will make significant inroads into the House of Representatives—far greater inroads into the House of Representatives in a double dissolution election than in a half-Senate election.I note that there are a few people who will possibly pay the price for this decision of the Prime Minister and Senator Harradine, and I am not talking about the Aboriginal community. I will come back to them in a moment. I am talking about some of those senators who will be running the death seat for the coalition in some of the states that I have just mentioned: in South Australia, in Western Australia, and I suspect Senator Sandy Macdonald in New South Wales. I am not sure exactly what is going to happen in Queensland. I have had a look at it, but it is very difficult to tell. At the end of the day, in those particular states and in those particular areas, there is a real chance that the coalition will pay a price for the decision. They were going to pay a much bigger price had there been a double dissolution election because I suspect, on the opinion polls that I have seen so far, in my state of South Australia Senator Ferris and Senator Chapman probably would not come back. Indeed, I suspect in Western Australia the person running on No. 6 would have been out as well. In some of the other states, particularly New South Wales, there is no doubt that we would not have seen six coalition senators coming back.What has happened with this particular arrangement is that, at least where the Prime Minister has talked himself absolutely into a corner, he has been given a reprieve. I think this legislation will go through here this week. I do not want to cast any doubts on that. I have seen in the media all sorts of argumentation about one or two senators, but my suspicion is that this bill will go through this place this week and will lift at least the threat of a double dissolution generated by Wik from the near political future. I do not know whether or not the government will choose to exercise one or two other triggers that they have. I suspect not. I do not want to say that to terrify coalition senators. I see one or two of them are worried by that. They had not thought of the possibility that the Prime Minister might get them off the Wik hook and put them on another, but at the end of the day I suspect that is not on.There are a few other issues that are floating out there, and those issues are ones that have been generated by the coalition. They have been generated by this Prime Minister. This would be the untidiest government I have ever seen in my life. I have never seen a mob run like this. You would have to go back an awful long time—and well before my political life—to find a Prime Minister as incompetent as this one. Indeed, all the tests of this incompetence are of his own making.The legislation before us seeks to settle a number of problems, but it does not have very auspicious beginnings. Throughout the last few weeks discussions have been going on around here—there was the scuttlebutt and the rumours flowing around the corridors that Senator Harradine and the government were in close negotiations and that this had been going on for a while—and then an announcement was made last week that we would be coming back here this week to deal with this and a few other matters. In fact, somebody suggested we might even be here for another week further still. Whether that is true or not, I do not know. All I know is that there is one group that this rumour did not come from, there is one group in our society that is completely innocent of spreading the rumour of any negotiations, and that of course is the indigenous population, because they were excluded from them. That is what I mean when I say that this has not had the most auspicious of beginnings. One would have thought that the government could have brought in the indigenous people and consulted with them again. They argue that in fact they did this and that they did it extensively for Wik bill No. 1 and then Wik bill No. 2. I do not know whether that is so or not, but Wik bill No.1 and Wik bill No. 2 failed in this place.If I am correct, what is likely to be the law, what is likely to come out of this week of sittings, is going to influence the law for some years to come. The whole Western, liberal, democratic tradition that where law has a very strong impact on particular sections of the community they be consulted was just thrown into the fire. It would have taken very little effort by the government to have reached out and tried to have further discussions with the indigenous population in this country.Remarking on this bill, a number of commentators have said that at the very least the National Indigenous Working Group could have been consulted—there are other groups that obviously the government will need to discuss other matters with in the future—should have been consulted and really must have been consulted in this whole process. They were not; those efforts were not made. It was interesting that the miners were consulted—and so they should have been. I think most people in here know of my own interest in the mining industry. In particular, I have a lot of sympathy and a lot of support for those people who toil on top of the land—the farmers and the pastoralists—and for those who seek the wealth underneath the ground. But the other group that should have been consulted—the group that is going to be deeply affected by these particular amendments that will go through here this week—is the indigenous peoples of this country. I am surprised, if not shocked, that the government did not even put up a show of consultation with these people. I think that is a very big mistake.Whatever comes out of here this week, which may well be held by a number of people as being good legislation, effective legislation, legislation that will work and legislation which will provide certainty to groups of people such as farmers, pastoralists and miners—and maybe even to the Aboriginal community, if the government's claims are to be believed—one of the problems will be that there will always be a sense of feeling that this was an ambush, a bushwhacking, of indigenous people, simply on the ground that they were not consulted at any stage of this bill. It is not adequate to get up and say, `We consulted with them before. They walked out of previous negotiations.' It is not adequate to say that the indigenous people would never have agreed with these amendments and they would never have agreed with the principles enshrined in them. At the very least, they should have been consulted, and it is very sad that they were not.The final point that I want to make is this: if this were a Labor government putting forward these amendments and miners and pastoralists were excluded, there would be screaming all around the countryside, there would be screaming in all of the cities, there would be screaming in the media—there would be screaming everywhere—because an important group had been locked out of very important negotiations. Sadly, that is what has happened to Australia's Aboriginal community.18:13:005013Allison, Sen LynSenator ALLISON1M6VICAD00—One of the disappointments in this new deal on native title is the fact that the questions on the environment raised during the last two occasions on which native title was debated have not been addressed. The Australian Democrats have focused their efforts on the rights of indigenous people during this debate but have tried to raise the impact of the 10-point plan on the environment as well, and nothing has changed with the deal which is encompassed in the Native Title Amendment Bill 1997 [No. 2] . As I understand it, there is some strengthening of the negotiation process before there is agreement to upgrade pastoral leases, but this appears to be little more than a token gesture and gives us very little comfort. I draw attention to the words of the 17 eminent scientists who make up the National Biodiversity Council, who three months ago said that the 10-point plan posed a significant threat to Australia's biodiversity. They said:Biodiversity conservation must consist of careful management of unreserved land; that is, land used for grazing, agriculture, mining and human settlement. The Council believes that it is imperative that controls like those imposed on the use of leasehold land remain and, indeed, they should be strengthened in accordance with our improving understanding of how best to manage land sustainably.The NBC calls on the government to honour its commitments to the International Convention on the Conservation of Biological Diversity by not pursuing proposed changes which may permit the opening up of new and potentially inappropriate land uses across much of Australia. It is our opinion that opening up leasehold land to full primary production and facilitating land uses which are equivalent to those on freehold land will seriously diminish our ability to protect the biodiversity Australians are so fortunate to have inherited.The upgrading of pastoral leases, for instance, opens the way for the irrigation of vast tracts of land in this country. We know that this means primarily cotton growing, with all its inherently damaging practices. Salinity, pesticide pollution, threats to species of fish and birds and the loss of environmental flows are just some of the problems associated with upgrading pastoral leases in this country.The damming of the Fitzroy River in the Kimberleys could allow the conversion of roughly a million hectares of pastoral lease land for agriculture under the 10-point plan. Added to that is the potential such upgrades have to wipe out the culture of Aboriginal communities in the region. These traditional owners will have really no say over a scheme which may radically alter the whole form of the land and, with it, their relationship to that land. Our national parks and state forests are also under threat with this legislation. Approximately 23 per cent of Australia is in reserve. The amendments would allow reserve land to be used for non-reserve purposes where it would cause `no greater impact than a use consistent with reserve purposes'. That will be done, again, without reference to native title holders. The states can develop management plans or put in, for instance, camping facilities without any requirement to negotiate with native title holders. Negotiations under native title of crown land in reserves is not a question of stopping all development. It is not a question of giving exclusive rights of access or occupation to indigenous people. It simply provides for consultation and agreements about how these places are managed.Two shining examples are Uluru and Kakadu. The latter has come somewhat unstuck because the government now says that it is okay to ignore the wish of traditional owners and put a uranium mine in a huge part of the most important and most vulnerable natural environment in the world. At the time when Uluru was handed over to Aboriginal people, doom and gloom prevailed. But the lease-back arrangement has worked very effectively. If it is not broken, why the heck do we try to fix it?Coalition governments, in my view, are just never prepared to accept that Aboriginal people have rights to the land. How they organise their rights ought to be their business. A few weeks ago, the Territory government made moves to impose itself on the board of management of Uluru, prompting the land council to threaten to tear up the lease. I do not understand why conservative politics is so sure that it has all the answers and is so determined to undermine indigenous people.The 10-point plan and the agreement which has been reached to pass the Native Title Amendment Bill [No. 2] is yet another abrogation of responsibility by the federal government to the states. It seems that this government is determined to rid itself of anything like a national approach on the environment or native title.What this legislation does mean is that local area agreements will take on even greater importance than before. Again, I stand here to acknowledge and welcome the work of the Australian Local Government Association in facilitating local area agreements. As I mentioned when I last spoke on native title, local communities want accurate and dispassionate information to assist them in developing their understanding of native title. The ALGA published in May Working out agreements—a practical guide to agreements between local government and indigenous Australians. The ALGA has now prepared two information kits: this document and a detailed guide to working with native title in local government. It is worth repeating what the ALGA president, Councillor John Campbell, says in the foreword to the agreements document:The powers of local government belong to and are derived from its citizens and they include both indigenous peoples and non-indigenous peoples. Local councils also have the capacity to demonstrate goodwill, thereby creating a climate for ongoing mutual respect and understanding.An agreement or statement of commitment with Indigenous peoples can be a key in developing mutual respect and understanding in the wider community and can produce very real social and economic benefits.There are no perfect processes. The issues are on-going, requiring a continued commitment of imagination, energy and resources. However this guide provides excellent checklists and step-by-step instructions for developing, implementing and reviewing agreements between local councils and indigenous Australians in a local area.Any consultation and negotiation leading to an agreement between Council and Indigenous peoples can only be seen as building mutual respect and understanding. It is important to bear in mind the effect an agreement will have on the relationship between Council and its Indigenous citizens in the longer term. An agreement better equips the parties to meet new circumstances and provides an increased willingness to overcome difficulties as they arise.Consistent with the judgement of the High Court in the Mabo case, recognition of prior and continuing traditional ownership of country is an important part of building trust and partnerships between Councils and Indigenous Australians. Decision making processes now need to reflect these recently recognised rights of Indigenous Australians. Agreements should be a prime method of achieving this goal and avoiding costly and unnecessary conflict and litigation. I wish that the leadership we see in local government was as apparent at the state and federal levels. As Aboriginal and Torres Strait Islander people face a very uncertain time with the additional difficulties of reaching formal and legally binding agreements through the 10-point plan mark 2, I hope that we will be able to look to local government to show the way. I hope that these agreements will be about community building and flexible arrangements that will have wide support. I hope that these agreements will build awareness about cultural difference and that that difference will become a thing to celebrate rather than despise.I commend the ALGA on the way that it has approached this whole question of title for indigenous Australians. The guide to agreements is in language that is very easy to follow. It is well laid out, and the steps to reaching an agreement are very clear. A rapidly growing number of councils have reached agreements. I will cite a few of them this evening. Banyule, Manningham, Whitehorse and Nillumbik in Victoria have all made statements of commitment to the Wurundjeri people. They say that this was an important starting point in formalising a working relationship between the councils and the indigenous peoples.The Shire of Broome has signed an interim native title agreement with the Rubibi people. The Cardwell Shire Council has agreed on a local planning policy on Aboriginal cultural heritage and land interests. The benefits of this agreement, they say, include a greater certainty for developers and a clearer understanding of the likelihood of indigenous land interests and cultural heritage matters. It will also mean better forward planning for the council and raising the profile of the council in the community as guiding the future of the shire and contributing to better outcomes for indigenous land management.The district council of Ceduna has developed an agreement it calls `Best Practice Statement—Council belongs to Aboriginal People too'. Ceduna says this agreement has led to greater community cohesion and cooperation between indigenous and non-indigenous people. The Cowra Shire Council has signed a local services agreement with its indigenous people. The Ipswich City Council has signed an accord process which addresses such issues as reconciliation, self-determination and sustained economic development for the indigenous residents of the city of Ipswich. The benefits of its agreement include enhanced economic development and quality of life for indigenous people and the positive profiling of Ipswich City Council as an innovative and progressive local government council.The City of Melbourne has signed a draft statement of commitment to indigenous Australians which, amongst other undertakings, identifies and protects sites of cultural heritage. Melbourne City Council says the benefits are the valuing of diversity, trust, mutual respect and knowledge—the foundations and tools to eliminate racism and discrimination. The City of Newcastle has signed a firm commitment to reconciliation and is developing an action plan to redress disadvantage and attain justice. Newcastle says the council will benefit because the effectiveness of democratic government is correlated with the level of civility in society.The Redland Shire Council has signed an agreement with the Quandamooka Land Council on North Stradbroke Island. They say the agreement has improved relations with Aboriginal people and that the success of the negotiations can be attributed to the level of goodwill which exists. The Wellington Council in New South Wales has signed a native title agreement to resolve competing interests in the use of and access to the town common and associated river bank and ensure the longer term recognition, protection and management of those interests.The consistent theme throughout the case studies that are cited in that agreement document is, I think, the involvement of indigenous people in discussion. Of course, as Senator Quirke pointed out earlier, what characterises the federal government's dealings in the last few weeks is the way in which this group was completely shut out. An agreement between groups of non-indigenous people—miners, the government, pastoralists and Senator Harradine—is what this agreement is about.Local government provides us, I think, with some hope for the future on native title. Perhaps it will show the way for state governments too. Perhaps we will revisit this question of native title in this place when the federal government is more enlightened and when it is prepared to talk with that group which is most affected by its decisions.18:26:005016Forshaw, Sen MichaelSenator FORSHAW656NSWALP00—Why are we here today debating this issue of native title once again? We are here because the Prime Minister, John Howard, lost his nerve. Ever since Mabo, the Prime Minister, the Leader of the National Party and Deputy Prime Minister, Tim Fischer, and the coalition have wanted to wind back the concept of native title. They have never accepted Mabo. They have never accepted it because they still believe in terra nullius. Even though Mabo overturned what had been a long-held doctrine with regard to the settlement of this country, unfortunately, the coalition—if they had their way—would return to that legal fiction. They have never been able to accept that this land was previously owned by prior inhabitants. The proof of that was, of course, in the first attempt to deal with the issues of native title arising out of the Mabo decisions.When the then Labor government put before the parliament legislation to deal with an historic and unique decision of the High Court, one which fundamentally overturned the historic position on property rights in this country, what was the approach of the coalition? Their approach was to not cooperate at all. Their approach was to simply attack whatever proposals the government put forward. They never moved one amendment in the entire debate in the House of Representatives and the Senate on the original Native Title Bill. Their approach all the way through was to attack the government and to hold out the proposition that whatever legislation the government passed would be challenged in the High Court.Those challenges took place. Immediately the parliament passed the Native Title Bill, the Western Australian and Queensland governments went to the High Court seeking to have it overthrown. They were unsuccessful in their challenges, but it demonstrated what the fundamental principle of the coalition and the conservative forces of this country was—that is, non-acceptance of the principle of native title—and they have sought ever since to denigrate and attack the Labor Party for its initial attempts to resolve the issue through legislative debate and statutory reform.The Wik decision clarified issues arising from the Mabo decisions. In particular, it clarified but, in the process, found—quite surprisingly, for all concerned—that native title rights could coexist with pastoral leasehold rights. So what had been believed by all the major parties to be the position of native title rights vis-a-vis pastoral leasehold rights was in fact held not to be the case by the High Court in the Wik decision. That introduced an entirely new element into the process: a requirement that the government of the day deal with a further development in the recognition of native title rights.Sitting suspended from 6.30 p.m. to 7.30 p.m.656Forshaw, Sen MichaelSenator FORSHAW—Prior to the suspension of the sitting, I had referred to the Wik decision of the High Court and how that decision had clarified certain reasoning in the Mabo decision with respect to how native title rights could coexist with pastoral leasehold rights. It seems to have been forgotten by honourable senators on the other side and by representatives of the farming interests of this country that the right granted by the Wik decision to indigenous people for native title rights to coexist with pastoral leasehold rights was a heavily limited right; that is, the pastoral leasehold would in any contest at law be superior to an equivalent coexistence of a native title right.What was the reaction of the coalition parties to the Wik decision? In the Prime Minister's language, Wik just went too far. If it was hard enough for the conservative forces to stomach Mabo, then it was impossible for them to accept Wik. In the Prime Minister's language, the pendulum had swung too far towards the interests of the indigenous people of this country, and it was time for it to swing back. Hence, he developed his 10-point plan, a plan that involved—to quote his own words and the words of Tim Fischer—`bucket loads of extinguishment'.They approached the issue of resolving the Wik case—the very contentious issue of native title rights and how they could coexist with other longstanding property rights—on the basis of someone's rights having to be extinguished. Whose rights were to be extinguished? None other than the indigenous people. Those who had only a year or two earlier finally had recognised after 200 years of white settlement the fact that this was a continent populated by people prior to white settlement who had an attachment to the land and who had a system of property ownership and correlation to the land.The coalition's approach was never based on a concept of trying to find a compromise. It was based on an endeavour to claw back as much as possible the Mabo and Wik decisions to once again get as close to the concept of terra nullius as they possibly could. So their 10-point plan contained in their Native Title Amendment Bill was legislation downwards. It was statutory amendment designed to limit rights and not to look for ways in which rights could coexist. I draw honourable senators' attention to the words of Senator Barney Cooney here this afternoon when he reminded us that different forms of property rights can coexist. They have existed and coexisted in common law ever since the concept of property rights at common law were first thought of. The Prime Minister says that his legislation is designed to bring about equality. I have some doubt that the Prime Minister understands the meaning of `equality'. It is a word that has been abused in the debate that has gone on over the last two years. Pauline Hanson, at the extreme, claims that there is no equality in this country because she believes that Aboriginal people are better off than white people. That statement only has to be made to be refuted. Nevertheless, she continues to trumpet that mantra.Since she first came into this parliament after being elected as the member of Oxley and said that she would represent everybody in her community in this parliament except the indigenous people, what has been the Prime Minister's response? It was up to him as Prime Minister, as the national leader of this country, to put a stop to that racist, divisive nonsense once and for all at the start. But he did not; he let it go on. He said that Mrs Hanson had a democratic right to free speech; yet, faced with the threat that One Nation now represents to the National and Liberal parties electorally, he came out two weeks before the Queensland election and said this woman was `deranged'. Maybe if he had taken such a strong stance at the outset, we would not be here today having to debate this legislation again.I have a great doubt as to whether the Prime Minister really understands the meaning of `equality' and, as Barry Jones recently said, `He confuses equality with uniformity.' Those on the coalition side who complain that even these limited rights of native title holders should not exist to the extent that they currently exist should stop and recognise that they and their predecessors—the farmers, the miners and the pastoralists—have now had the benefit of the doctrine of terra nullius for 200 years. There never was any debate about competing property rights; there never was any debate about equality until Mabo and Wik were handed down by the High Court. Indeed, if the British common law as applied in conquered countries had been applied in Australia from the outset, then we would have long ago had to negotiate far more than is now involved in the limited rights available to indigenous people under Mabo and Wik.John Howard, the Prime Minister, on the last occasion went to the brink of compromise with Senator Harradine, but then said at the eleventh hour there was no deal, his 10-point plan was sacrosanct and the four key items were non-negotiable. In a mere couple of hours following the lengthy debate in the Senate, the House of Representatives dismissed the Senate's considered amendments. The Prime Minister had his trigger for a double dissolution. He had his trigger for the race based election that many of us now recognise he secretly wanted. But his plan fell apart when the Queensland election went wrong. One Nation's success and the demise of Premier Borbidge, the great opponent of native title rights in Queensland, suddenly made the National and Liberal parties wake up, open their eyes and stare extinction in the face.Senator Harradine said he blinked. I do not in any way wish to question Senator Harradine's motives. Indeed, I believe his motivation is genuine and he desperately does want a settlement to this issue and he desperately does want to avoid a race based election. I believe him when he says he is genuine, when he says he wants an honourable, fair, just and workable outcome, but I cannot see how the latest proposal, which seeks to reduce the right to negotiate—that inherent principle upon which Senator Harradine and the opposition parties and the Greens and the Democrats in this place were not prepared to buckle over—somehow is now able to be compromised and the jurisdictional issues handed over to the states.My God, fancy handing this issue over to the states! After all, the referendum in 1967 was all about ensuring a national approach to resolving the issues facing our indigenous people, because the states had been doing it for 175 years and had stuffed it up, and continue to do so. I seriously worry about the outcome of a process that will allow people such as Premier Court and former Premier Borbidge—if ever he was to get back into power—or his ilk to have a say over the right to negotiate.Any decision of this Senate to pass this bill will be tainted, for two reasons. Firstly, it will be tainted because of the failure of the participants in the latest round of negotiations to consult and to negotiate with the indigenous people. If they had a right last November to be involved, if they had a right last April to be involved, then surely they have a right now to be involved in the outcome of this third Senate deliberation. Secondly, and finally, the result will be tainted because the proper party representation of the Australian Labor Party is no longer reflected in the numbers of this Senate. If the ALP did have its proper representation, then this bill would be defeated. (Time expired)19:41:005019Crossin, Sen TrishSenator CROSSIN7Y6NTALP00—In the Northern Territory, 25 per cent of the population are indigenous Australians. In a week that would normally be recognised as NAIDOC—National Aboriginal and Islander Day of Celebration—the federal government has ensured that indigenous people have been sold out and have little to celebrate. This has been a process of collusion, not negotiation. Indigenous Australians have not been engaged in the process, the outcome of which will result in a substantial loss of their rights. The federal government has listened and succumbed to the wishes of conservative governments, particularly in Western Australia and in the Northern Territory.There are a number of issues related to this current debate which deserve special attention, not the least of which is the attitude of these various state and territory governments. Like the Prime Minister (Mr Howard), the conservative state and territory leaders have distinguished themselves by their kowtowing to the racism that underpins the extremist views expressed in the politics of One Nation and the political blackmail of elements of their own constituencies. Two current leaders who stand out in this regard are the Premier of Western Australia and the Chief Minister of the Northern Territory, Shane Stone.In the case of the Chief Minister of the Territory, he has shown that he is not prepared to deal properly and fairly with the rights of indigenous Australians. He has refused to use the provisions of the 1993 Native Title Act, especially the right to negotiate provisions, and he has done this as a deliberate act of Northern Territory government policy. The effect of this has been to frustrate and retard the economic development of the Territory.For the 20 years since self-government was achieved in the Territory, the Country Liberal Party, the CLP, has been in power. The current Chief Minister epitomises the arrogance and dictatorial attitude that has characterised the CLP's governance of the Territory over this period. In the time-honoured fashion of the CLP, he has had as the underlying tenet of his political strategy the division of the electorate on matters to do with race. We have seen it time and time again during each and every one of the Northern Territory's elections. The Chief Minister has, as his predecessors have done, attacked and vilified individual Aboriginal leaders and the organisations that represent their interests, particularly the Central Land Council and the Northern Land Council. The CLP has practised the policies of division that are so coveted by One Nation and its advocates.On these issues the CLP has form, and it is there for everyone to see. It should come as no surprise that the federal government has granted its wishes when it comes to alienating indigenous Australians. The Northern Territory government has, as a matter of public policy, refused to recognise the native title rights of Aboriginal Territorians, particularly the right to negotiate. On 7 October 1997 it was acknowledged as a key element of the CLP government's approach to native title in evidence it gave to the inquiry of the parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund into the Native Title Amendment Bill 1997. In Alice Springs, in statements taken from the senior policy adviser to the Department of the Chief Minister, it was said in relation to the right to negotiate that it is `simply not practical for day-to-day land administration'.In response to a question from Daryl Melham as to whether it was a policy decision of the Northern Territory government not to use the provisions of the Native Title Act, the Northern Territory government officials present at the hearing responded, `Yes'. They then went on to acknowledge, though, that they have been prepared to selectively use the right to negotiate provisions of the act depending on the development concerned. It will come as no surprise to the Senate that they have sought to use these provisions in relation to the Alice to Darwin railway line. At the same parliamentary committee hearing in Alice Springs last year, the same Northern Territory government officials indicated that the Northern Territory government wished to use the provisions of the Native Title Act for the railway but had not got there yet.Today we have a press release from the Northern Territory railway minister urging the Central and Northern Land Council to finalise a deal on land along the proposed corridor regardless of the Wik bill. Minister Coulter says in the release:They have a deal in front of them, they simply have to sign it and there's no need for any confusion on Wik.There is proof that the real problem is not the unworkability of any act of parliament but the attitude of the Northern Territory government. They have now been able to convince the Howard government to dance to their tune and to take away the right to negotiate by the stroke of the pen and to throw certainty for all stakeholders to chance.In Alice Springs there is a lot of vacant land around the township capable of development and native title claimants would be happy to negotiate, but the Northern Territory government is not prepared to. They have refused to use the provisions in relation to the native title claim over Crown land in Alice Springs and Darwin. They have then asserted that any perceived lack of access to land for development in these two centres is a result of the `perfidious and irresponsible and greedy native title claims.' The truth of course is very different. Aboriginal claimants have consistently and regularly stated their preparedness to negotiate over these claims; the Country Liberal Party has just flatly refused to do so. In taking this view they hope in the most cynical and divisive way to exploit the political dividends that result from their deceptive portrayal of Aboriginal Territorians.The amendments that we are dealing with today are a tragic indictment of the attitude of conservative parties nationwide to indigenous rights and have dealt a savage blow to any prospect of reconciliation. Indigenous Australians will now have no rights at all when it comes to development except to be consulted or notified—and we know what that means when it comes to the Northern Territory government. These limitations will suit the Northern Territory government and ignore the wishes of a quarter of the people they claim to represent.When the Prime Minister was elected he pledged he would govern for all Australians. In the Northern Territory the Chief Minister boasts that his party is a party for all Territorians, but this is clearly not so. As a Territorian, I, along with many other Territorians, am ashamed of the way we as a nation are treating our indigenous brothers and sisters. And it is disappointing in the extreme to see through these amendments to the Native Title Bill that the recalcitrance, ignorance and divisiveness of political leaders, such as the Chief Minister of the Northern Territory, are being rewarded by a blinkered and obdurate Prime Minister. We should all be in no doubt about the impact of these amendments. This deal is unjust and native title will exist in name only. Once again indigenous people have been forced to pay for the incompetence, ignorance and intolerance of a hostile government.19:48:005020Lundy, Sen KateSenator LUNDY7G6ACTALP00—The last time I spoke about native title I asked the senators opposite to consider what the historic Wik High Court decision meant to Australians. I asked them to consider how it impacted upon our identity as a nation and how it will change the lives of indigenous Australians. In seeking answers to those questions I had hoped that the majority of coalition members would seize the opportunity to enshrine the principles of the Wik High Court decision in legislation. I believed that there was enough will within their ranks to proceed down the path of genuine reconciliation.Tragically this was not to be, and the last time we debated the Native Title Amendment Bill those of us who sought to establish human rights and genuine equity under common law were appalled that the Prime Minister was so shamelessly disregarding these basic principles. In doing so he neglected, and by his actions he is still neglecting, his social responsibility. His 10-point plan was unworkable and unfair and we rejected it accordingly.The subsequent refusal of the Prime Minister to even attempt to negotiate a com promise solution with indigenous Australians meant that the first person who reached out to help the Prime Minister climb out of the slimy pit of racism he was in was bound to be pulled in. Hence we see Senator Harradine languishing in the same slime pit. In analysing the actions of Senator Harradine one thing becomes patently clear: the Prime Minister offers so little inspiration and is so devoid of social responsibility that the senator who sees himself as probably the next most powerful politician in the country heard a call to take the lead. He says he `blinked'. Dry eyes aside, I say he could not resist the temptation to show how he could bridge that leadership gap. In doing so we see a pair of perhaps the most cynical and wily of the conservative politicians pitting their wits against each other, and the nation has paid the price for their indulgence.The double dissolution was always the joker in the pack. The lever it provided was always going to serve the need of the government; that is, to force through racist legislation. We all know that a double dissolution election was a price that this government was prepared to pay in serving the corporate interests. By entering negotiations did Senator Harradine really think that these interests would somehow wilt or fade away?Whatever the motives of Senator Harradine in seeking to avoid a double dissolution, the end result is that he and Mr Howard are creating laws as if they alone know what is best for Aboriginal people. Sadly, the product of those negotiations is not what is best for Aboriginal people. I do not necessarily know what is best for Aboriginal people either, nor do I pretend to. But the people I would ask what is best for indigenous people are indigenous people themselves. Sadly, this did not occur or was deliberately ignored by both Mr Howard and Senator Harradine throughout their process.My role and Labor's role is to fight for what we believe in and for what we think is right and just. I stand behind our commitment to indigenous Australians and we will not walk away from that, regardless of any threat of an election—double dissolution or otherwise. In seeking to avoid a race-based election, Senator Harradine has unfortunately helped to create a far more unworkable scenario. As Kim Beazley has put it, this bill will be a `lawyers' picnic'. The validation of illegal grants will result in drawn-out compensation claims that will satisfy no-one. So, instead of an agreements process or negotiated outcomes, lawyers will slug it out in expensive court cases. If these amendments are successful, we will see the states being forced perhaps to take a leading role. We know where that has taken us in the past, and we certainly know the intent of the constitutional change that meant that these issues should be dealt with by a federal government.We also know that a traditional weapon of the conservatives in this country is to place these issues in the hands of the courts, to place them in the hands of those who determine common law. Why? Because it drains resources, it drains energy and it takes time. Look at the examples where the conservatives have sought to silence the trade union movement. The first port of call, the first offensive, if you like, on behalf of conservative governments is to get the unions in the courts to make them spend all their money and to take away from them the opportunity they have of defending themselves.We see the same tactic being played out here. We see this government providing a scenario where the courts will become the determinants of the outcomes. Who is going to pay to represent indigenous Australians? We know who is going to pay to represent the corporate interests. They have their own money; they make substantial profits off the land.No matter what spin Senator Harradine and the coalition put on it, taking away the right to negotiate will take away the right of Aboriginal people to preserve their culture and heritage. His name and the names of this government will become synonymous with the betrayal of Aboriginal people. This government has shown it is immune to humanity and it is oblivious to the demands that reconciliation proceed with dignity. If you look at the overwhelming support for reconciliation and the positive and progressive way that native title has been presented by the previous Labor government, it makes this compromise even harder to fathom.Many of my colleagues have already pointed out the incredible unfairness and injustice of this compromise package and I have listened to them detail the tragic history of Aboriginal Australians and the difficulties they face. Nothing is more important to Aboriginal and Torres Strait Islander people than their land. Labor understands this because the Labor Party sat down with Aboriginal people and tried to work out a solution to native title.Paul Keating began this process in Redfern some years ago when he showed what true leadership is about. Now Kim Beazley carries that torch. Mr Beazley has said time and time again that the way to deal with the Wik and Mabo decisions is to sit down with the stakeholders and negotiate between them. Of course, the key to doing this is to actually involve indigenous people, not to exclude them from negotiations and then turn around and say, `We know what's best for you.' How archaic; how patronising and how unacceptable in today's world and in today's political processes.The Labor Party recognises that the debate over native title is a watershed for all Australians. How this chamber votes will dictate how Australia's history books will be written. One of the mantras that Mr Howard and Mrs Hanson keep spurting out is about equality for all Australians, yet this government has already ensured that inequality remains the lot of Aboriginal people. All this talk about equality ignores the fact that indigenous Australians are not starting on an equal footing. To argue, as those in the coalition and One Nation have, that the right to negotiate is somehow an advantage that others do not enjoy is absolutely ridiculous.The politics of One Nation sickens me as does this government, a government that uses Aboriginal issues to divide the community. In fact, I believe I speak on behalf of Australians of my generation, when I say we are all sickened by the way the race card is being played by this government. We recognise the structural and social disadvantages that affect many indigenous Australians and seek to create an environment that will result in their betterment.Young people are angry, frustrated, saddened and very disappointed—cynical as they may be—that a group of theoretically `together' adults—ie, cabinet ministers—can get it so wrong. Young people understand what this bill is about. They understand that it is about whether you believe in giving Australia's indigenous people the same common law rights as the rest of Australia has. They understand that this government is not about providing that equal footing.All around Australia, young people—and I am talking about primary school students, in particular—are confused. They are asking their parents, `Mum, what is racism?' `Mum, why doesn't Pauline Hanson like Aborigines?' `Dad, why doesn't John Howard want to give Aborigines their land back?' I get this from my own daughter and I hear it from seven- , eight- and nine-year-olds all the time. Nothing is a greater indictment of this government than that those young kids are now asking these questions.What right has this government got to bring this question back into the lives of Australians and back into their homes? This is something that has been dealt with in the past and I truly believed, when I was elected to this place, that we had moved far beyond race as an issue of debate in this country. To have to stand up here tonight and revisit it in this way is the saddest experience that I have had to date as an elected member of this place.Let me say that there are plenty of Liberal Party voters and members, and former members particularly, who are horrified by the Prime Minister's prejudice. Malcolm Fraser has been out there writing articles and suchlike about how badly John Howard is handling native title. I never thought I would say this, but Malcolm Fraser starts to look pretty progressive compared with John Winston Howard. For all his faults, Fraser knows that Australia's international reputation is in tatters and that domestically this week the Prime Minister is being driven by his inability to separate his views from the prejudice of the One Nation Party. Who knows what former Liberal ministers Fred Chaney and Ian Viner must be thinking. I wonder what their thoughts are about a Minister for Aboriginal and Torres Strait Islander Affairs who stands by doing nothing while indigenous Australians see their rights voted away. Never before have we seen a minister so willing to sell out his constituency for some perceived and misguided electoral advantage. Rather than defend a High Court decision that offered some sort of future for indigenous people, the minister will support foreign pastoral leaseholders and mining interests and corporate interests generally.With respect to mining companies, their claim that delays in resolving native title will force investment and jobs offshore is nothing more than malicious misinformation. Even if it were true, it is not an argument to prevent justice for indigenous Australians. Exploration and mining continues unabated. It also continues in other countries with indigenous populations, be it New Zealand, Canada or the US, where they have ostensibly managed to deal with native title issues. I might remind those senators who want certainty for mining companies that these companies don't exactly do the right thing by Australian workers. When their mineral deposits run dry or commodity prices go down, it is Australian workers who lose their jobs and it is their communities that lose income and investment. It is not even a measure of one group in the community against another; it is not even a comparable measurement or weighing up of this group against that group. Is it in our best interest to forsake the rights of Aborigines so that mining companies can continue unfettered exploration and development without regard to the rights of traditional land-holders? Of course not. Who would think that it was? It makes no sense at all.I stand proudly with my Labor colleagues in refuting these proposed changes. Let history judge the actions of the Keating government and the Beazley Labor Party with regard to native title, because our commitment is unquestionable. Last time we debated these issues, I reminded the senators of this parliament that they had a choice. They can be remembered as being part of a progressive Senate with a social conscience and a sense of what is right and just, giving genuine expression to their social responsibility; or they can be remembered as the most retrograde, backward looking, paternalistic bunch since Federation. If an appeal to the ego of those opposite does not help, perhaps you should remember your own social responsibility. It is a fundamental thing which we all bring with us to this place. It is not about short-term politics, it is not about the self-perpetuation of a given administration—it is about what is right and what is wrong. I want my children to grow up in a society capable of bestowing justice and recognition on our indigenous community. I feel for the parents who are now finding themselves in the insidious position of having to explain to their children what racism is. (Time expired)20:04:005023Schacht, Sen ChrisSenator SCHACHT4J4SAALP00—Like my Labor Party colleagues, I rise to speak in support of the Labor Party's position in opposing the amendments that have been proposed by the government, in arrangement with Senator Harradine, to the Native Title Amendment Bill 1997 [No. 2] . Some months ago, when we debated this bill for the second time, I spoke in the second reading debate and I tried to find a way in which I could express a view that would be understandable, not only to me but to others, about the impact of native title and its importance to Australia's indigenous people. The example I used at some length was the experience of 100 years ago this year of the death of Jandamarra, the great Aboriginal warrior of the Kimberley region of Australia. For a number of years he led, in military terms, a very successful opposition to the settlement of the Kimberley and the penetration of white settlement. In the end he was killed defending his people, but above all else he was defending his native title.I read the story of Jandamarra, and I want to place on record a compliment to Harold Pederson, a Kimberley resident who has written the history of Jandamarra. I congratulate him on bringing out the facts about the life of Jandamarra. For decades he was described by white people in Western Australia as nothing but a murderer and a thief. That is the problem if you are the loser in history: the winning side paints you as a criminal, a terrorist, a thief and a murderer. Jandamarra was none of those. He certainly killed a number of white people because they were killing a number of his people. Nevertheless, the fight of Jandamarra and the Bunuba people at that time for their native title is still resonant today.In this bill we are dealing with issues that many, quite rightly, claim have a moral and ethical dimension. Many people deal with it on an almost religious basis. People look at various religions and see the religious aspects of this, and some of the considerable protagonists on all sides of this bill look at it in religious terms, including Senator Harradine himself. I respect his religious view, though I do not always agree with it. In this case, I do not see the native title issue as an ethical or moral issue connected to religion; I see it as a pure human rights issue. The High Court has ruled that Aboriginal people are entitled to their common law right to native title. If that is taken away from them, they have lost a part of the human rights that we as white Australians would defend and argue for very strongly. One could just imagine the outcry in the community if a government proposed that common law rights for white people over property were going to be taken away by specific legislation that discriminated against a people based on some racial definition. Unfortunately, despite the good intentions of Senator Harradine and others, that is what the import of this legislation is.In the national and international context, the bottom line of this legislation is: what are the human rights aspects that would justify us as a society saying that no group of our people had been discriminated against or had lost their common law right as defined by the High Court? The High Court has defined that there is a common law right with native title. We have had lengthy arguments about its definition and about putting it into practice, but the bottom line is that that common law right must be protected. If parliament can take the common law rights away from the indigenous people of Australia, in the end parliament may choose to take away the common law rights of other groups of Australians. That would be contrary to the whole evolution, through several centuries, of western democracy. I have always had an interest in human rights issues and I see this as a fundamental human rights issue, with all the moral and ethical considerations that go with it.I want to turn to a more specific issue, something that does bear comment upon. Last Friday morning, I heard an interview with Father Brennan on ABC Radio. He was making a number of comments in favour of the deal that was reached between Senator Harradine and the government. He was critical of the Labor opposition. I will not read the quotes out but one of the things that came through in that interview, and in another interview he did on ABC Radio today in response to an article by Mr Beazley, was that Father Brennan is running two different levels of standards on issues. He expects a Labor government to have a higher moral standard in dealing with this issue of native title and in dealing with Aboriginal issues generally than he expects the coalition to have. He is basically saying, `Look, Labor Party, roll over on this. We know this is a coalition government. They do not have the same view about the full depth of ethical issues on native title. When Labor gets back in, if you disagree with it, we will argue that you should amend the legislation to achieve the outcome that the Labor Party believes in.'I find it interesting that Father Brennan believes that you can run two different levels or two different tests. You can have the high jump bar at two different levels. You can have it very low for the coalition because you only ever expect the worst from them. But when the Labor Party is in power we are going to put the high jump bar much higher. I am sure that, if we win the next election, Father Brennan will be one of the first demanding that the Labor Party introduce amendments to this legislation to achieve outcomes which we have argued for through this long debate.Father Brennan, whom I respect as having a genuine interest in Aboriginal affairs, has now entered into the political debate, making value judgments about which political party should do what. He is entitled to that; that is his right. But when he introduces politics into the debate, making a value judgment about what the Labor Party is doing and what the coalition is doing, I think there will be some criticism that comes in return.This morning, in the Sydney Morning Herald, we had an article by the former Prime Minister, Paul Keating, making succinct and definite points about why he believes Senator Harradine and Father Brennan have not done what is best for the Aboriginal people. In particular, I draw the Senate's attention to his following remarks:Harradine and Brennan may imagine they have saved the country from a race-based election. In reality they have saved Howard from paying the price for his folly, and made the Aborigines pay it instead.I think that sums up the way this government has handled this issue. To stop a race based election, the rest of us have to roll over and allow amendments to native title to reduce the ability of Aboriginal people to protect and maintain their native title, which the High Court has found they are entitled to. My former colleague and leader, Paul Keating, sums it up in the way only Keating can:And what was the problem with co-existence of title on pastoral leases? Immense properties with one cow to every few hundred square kilometres and Aborigines exercising a right to traverse and live there? Where is one right inconsistent with another? Will the sight of an Aborigine on the horizon somehow make the cow's life unbearable?Succinctly, Paul Keating has put his finger right on the point of all this confusion—the scare campaign that native title is going to destroy the pastoral industry in Australia. He goes on to say in this article:The price for the Aborigines is permanent. Extinguishment is final. There will be no revival of certain rights.He points out what Father Brennan had said, that Peter Beattie in Queensland can introduce legislation for native title on a state level. Paul Keating says:Peter Beattie's election might give the Aborigines some chance in Queensland, but what one Queensland government gives another can take away. I suppose it is unfortunate to speculate that, at some stage in the intermediate to long term future, there may be another National Party government in Queensland.7G6LUNDYSenator Lundy—One Nation government.4J4Schacht, Sen ChrisSenator SCHACHT—In conjunction with One Nation. What do you think they would do? They would immediately remove any legislative protection of native title. Paul Keating has again succinctly put his finger on that point, saying:They are like a lot of people in and out of politics: they talk loudly and often about principle, and when the weights are on and permanent interests are at stake they look for a way to slide out.That is a classic Keating piece of language which is succinct, vivid and colourful in making the point. Of all the articles I have read on native title, that article by Paul Keating today is as good as any that puts a finger on the fundamental issue.I know that since that article appeared today, Father Brennan has responded, and I think there will be a letter to the editor tomorrow and he has done a further interview. That is fine. He has the right to argue his case. But he cannot get away from the fact that he has entered this debate at a level where he is making value judgments about the policies of the Labor Party and the coalition and which is best at the time. He is arguing that you can expect the coalition to have a lower level of commitment and concern for Aboriginal people in Australia and that when a Labor government comes back in, they can be expected to get rid of these more obnoxious elements.I want to conclude on the issue of why the Prime Minister changed his mind about accepting any compromise from Senator Harradine. The reason, of course, was the result of the Queensland election; an election that, for the Prime Minister, was an unmitigated disaster. He could not make up his mind to say publicly either `yea' or `nay' about whether or not the Liberal Party would give its preferences to the One Nation Party.One of the things that is completely objectionable about One Nation is that they openly state that Aboriginal people are getting favoured treatment in this country. That is One Nation's poisonous line to the community, told with great exaggeration. I say to any redneck racist: would you want to swap your life with any Aboriginal person in Australia? Of course they would not. There would not be one person who would say, `I'd rather be considered an Aboriginal person' because, on every social and economic indicator in Australia, Aboriginal people are worse off by a large degree. For example, the life expectancy of Aboriginal males is 20 years less than that of white Australian males. Why would you say, `It's better being an Aboriginal person' when, on the very basic indicator of life expectancy, Aboriginal people live 20 years less?Infant mortality rates are much higher among Aboriginal people. At all levels of health, education and employment, Aboriginal people are substantially worse off. The fact that the Prime Minister gave succour for over a year and did not condemn One Nation meant that their poisonous views were let loose in this country. Now the Prime Minister is running around, desperate to try to attack One Nation. Why? The redneck vote in the coalition is going to One Nation; it is not staying with him. How he sowed is how he is reaping and, with the forthcoming election—whenever it will be—we will now see the ultimate consequences of his cowardly inaction on this issue. He deserves everything he gets at this coming election. He is going to be the only Prime Minister with a majority of over 40 seats to lose an election in one term. And he deserves to lose for the way he has responded, through his inaction, to One Nation and the way he has consistently refused to consult Aboriginal people. Therefore I have great honour, with the Labor Party, in supporting the opposition's position. (Time expired)20:19:005026Evans, Sen ChrisSenator CHRIS EVANSAX5WAALP00—This debate is characterised by the fact that there is no Aboriginal voice being heard—not in this chamber nor in the negotiations that the government has conducted with Senator Harradine. No Aboriginal voice has been heard in this debate, their aspirations and rights have not been given voice. This has been very much a case of secret white men's business. The negotiations were held in secret and announced with great fanfare to the Australian public and to the Aboriginal people of this country, with the expectation that this Senate will now accept the fait accompli and rubber-stamp the results of those private negotiations. It is no surprise therefore that the result of those negotiations, held in secret between the government and Senator Harradine, are that Aboriginal rights have been further eroded. Aboriginal people were not at the table, their interests were not protected and, as a consequence, their rights have been eroded.The amended bill before us does not give effect to the High Court Wik decision, but rather it seeks to water down and to ameliorate the effects of the Wik decision of the High Court. The lack of Aboriginal voice and the lack of respect for Aboriginal concerns in this debate are the central weaknesses in this proposition.In the Declaration of Independence, Thomas Jefferson highlighted a democratic tenet that has been central to democratic theory ever since. That is:. . . to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.That is the key point: `the consent of the governed.' Our systems are designed to ensure that, as much as possible, government policy and laws are made with the consent of the governed. But there has been no consent of the Aboriginal people to the bill before us today. There has not even been consultation with them, and that will be its underlying weakness—a weakness that I think will see this bill doomed and will see the Senate again debating native title in the very near future.Without consultation and the consent of Aboriginal people, there is no basis for a lasting solution to native title issues in this country. It is an issue which was understood by the Keating government, and they went out of their way to ensure the consent and involvement of Aboriginal people in drafting the Native Title Act in 1993. On this occasion, John Howard has sought only the consent of those for whom he governs: the miners and the pastoralists. He did not seek the consent or the involvement of the Aboriginal people, because he does not govern for them. He governs for sectional interests that do not include the Aboriginal people.In my view, that is the great weakness. That is the reason why this bill will not serve the country well. It was the key reason why the legislative framework we gave effect to in 1993 had as it central tenet the right to negotiate. In that legislation, Aboriginal people were given the right to negotiate as an expression of their native title and as a balance to the validation of past extinguishment acts that were also included in the legislation.The major weakness of the proposition before the parliament today is that the right to negotiate, granted to Aboriginal people in recognition of their history in that context, has been seriously weakened. The right to negotiate will not now apply on vast areas of land under claim in Australia. It will only apply on vacant crown land which, as I understand it, will represent in the order of five per cent of the total land mass under native title claim.What we have instead are the alternative provisions proposed by the government which, in lieu of the right to negotiate, will only allow a much watered down right to consultation for Aboriginal people. That watering down of the right to negotiate is at the heart of the opposition's criticism of the bill, and it is at the heart of the concern that I express tonight about the government's propositions.There are a whole range of other serious concerns with the bill which we are only just uncovering. Because we have only had the detail for a couple of days, this bill has not received the wide scrutiny it needs before being adopted by the Australian parliament.Senator Harradine, I gather, was earlier critical of people for making what he thought were unfair criticisms of the arrangements. Quite frankly, it is not surprising it takes some time to get on top of the hundreds of pages of amendments. I do not profess to be on top of all the detail; I have been trying to read it over the weekend. But that is one of the problems with the bill also—that too few people have been involved in this bill; too few people have been able to critique and test the provisions of the bill.What is clear, I believe, is that a number of conservative agendas have been achieved in this deal. The key agenda, of course, is that land matters and the management of native title will be handed back to the states. This was always a key conservative agenda. The federal government has insisted on the primacy of the states in dealing with land, and it has insisted on the right of the states to deal with native title. I think Aboriginal people have good cause for being suspicious and fearful in having their rights dealt with by state governments—the history in that regard is not good.The federal government is largely walking away from its responsibilities in this bill. It is saying, `We haven't been able to fix the problem; it's all too difficult; we'll hand it back to the states and let them get on with it.' That obviously is a victory for the conservative agenda. It is a victory for those who saw no role for the federal government in dealing with native title. But I think it is a retrograde step.It is clear in the explanatory memorandum that the states will have a great deal of flexibility in dealing with native title. It states:Notwithstanding that alternative provisions must, in the Commonwealth Minister's opinion, comply with the requirements set out . . . the States and Territories have significant discretion in designing a scheme under section 43A.That `significant discretion', I think, will be at the heart of the problems we will face. States with premiers like Richard Court will have significant discretion in drawing up what they think is a suitable native title regime for their particular states.The other great victory for conservative forces in this arrangement is that they have succeeded in reducing Aboriginal rights so as to equal those of pastoralists. When we set out in this native title debate in 1993, Senator Minchin and others argued that the then government's proposition was racist because it entrenched a special form of property rights—native title; and that that was available only to one race—Aboriginal people. So they opposed the provision of native title on the basis that it was racist. They would not support it in 1993. They had the slogan `One law for all'. They campaigned against native title as being unAustralian and racist.But in recent times they have become much smarter in their rhetoric. They have become much more politically correct in their rhetoric at least. Over time, they have come to turn that argument around to say that it is about making sure that Aboriginal rights are equal to those of other leaseholders. But they mean the same thing as they did before—that they want to reduce native title rights to rights equal to or less than those enjoyed by pastoralists and other leaseholders. In effect, they are saying that Aboriginal ownership, culture and relationship to country is equal to that of a pastoral leaseholder who pays a fee to run some cattle or sheep over the top of that land. They argue that quite openly.I say that is wrong. I say that there is a difference between an Aboriginal person's relationship with the land and that of a leaseholder. I say that Aboriginal people have a right to expect this parliament to protect their special relationship with the land, their history, their culture, their ownership and care of that land. To say that the best we can do is equate an Aboriginal's relationship with the land with that of a leaseholder is to show no respect at all for that Aboriginal culture and history. We may well end up with one law, but it will not be one which allows native title owners to exercise their proper native title rights over pastoral leases. Their rights are reduced by these measures, and it does the government no credit.Why has this occurred? On the last occasion we had this debate I asked why should we walk away from the principles laid down by the High Court in Wik. Those principles seemed unremarkable to me. They said that we ought to be able to co-exist with Aboriginal people; we ought to be able to share the land. But a whole range of people in the Australian community seem unable to accept what seems to me to be a fairly basic, fair and fundamental proposition, as espoused by the High Court.But now we have to change; we have to water down those rights. Why? Two reasons are held out. One is the fear of a double dissolution election. Somehow, because Mr Howard dug in and said that he had to have a double dissolution election if we did not agree with him, Aboriginal people now must pay the price and give up their rights for fear of what division might be caused by such an election.But what do Aboriginal people say about that? They, I think, would prefer that their rights be protected. They do not fear the double dissolution election in that same way as does the Prime Minister. They have lived with racism for many years; they will live with it for more. But what they do insist upon is the protection of their rights. Racism will not go away. One Nation will not go away. Racism will be an issue in the next election, whatever we do on native title. But Aboriginal people have a right to expect this parliament to protect their rights.How do I explain this to Aboriginal constituents of mine in Western Australia? How do we explain what has occurred here? Should I tell them that a couple of white fellas have done a secret deal; that those fellas did the deal because they do not want One Nation elected to the Senate. What I have got to tell them is that we are putting Richard Court in charge of native title so that Senator Ross Lightfoot will not be replaced in the Senate by One Nation candidates. I do not reckon they will know the difference, myself. I do not know that they will feel thankful that we have protected them from this. I think they will say, `That's not good enough. We don't want Richard Court in charge of native title in Western Australia. We don't care if One Nation replaces Senator Ross Lightfoot in the Senate. We will not notice the difference. What we want is our rights protected.' That is the obligation on this Senate, and that is what the Labor Party will continue to stand for.The other issue that is raised in defence of this move is the question of certainty. Everybody requires certainty. I think previous speakers have explained that the legal issues are compounded by the proposition before us today, and we will not get certainty. But I raise the issue of political certainty. Father Brennan is quoted as saying that the Howard legislation does not take away the right to negotiate on pastoral leases. It simply allows state governments to do so. Quite right, Father Brennan: it allows state governments to take away the right to negotiate on pastoral leases. It is very much a question left open to the states' discretion. The bill makes that clear. So now we have state governments, with their records on Aboriginal rights, in charge of native title.We have the potential of six separate state regimes. So instead of certainty we might well have six different regimes operating in different states. In addition, we will have the rules that apply in terms of vacant crown land and we will have the rules that apply on pastoral leases, which may well be different in each state. In fact, they may well be different between different types of land. What about political certainty? All these propositions will have to be carried by state parliaments. Name me one state parliament which has a majority of conservative members in the upper and lower houses. We have a minority Labor government in Queensland, and in the other states upper houses are influenced by minor parties holding the balance of power.We have no certainty as to what the legislative outcomes will be in any of those states. What we have is an old-fashioned Australian handball. The government had to get out of having a double dissolution election. Prime Minister Howard had to find a solution and a way to be rid of the problem. So we had a handball. Handball it to the states; let them get on with it. If people think they are getting certainty as a result of this process, they are badly mistaken. What you will have is six state governments trying to legislate new regimes with a wide power of discretion through parliaments which they do not control. We may have all sorts of further uncertainty created by putting in place the regimes established under this bill.Certainty will not flow from the adoption of this bill by the Senate. We will not avoid a race based federal election merely by passing this bill. This is not a solution for those problems. We had an opportunity following the Wik decision to enshrine coexistence, to build reconciliation in this country on the basis of mutual rights. It seems that the government and now the parliament will spurn that opportunity. But we will not get a solution without the consent of the governed. This proposition put to us today lacks that consent. It is not a resolution for the problems that people have identified. It lacks the substance to deliver the certainty and the solutions people are looking for. It ought to be rejected.20:34:005029Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—The motion before the committee is that the committee does not insist upon its amendments disagreed to by the House of Representatives and agrees to the amendments made by the House of Representatives. We have a list of all those amendments, as I said before, broken up into categories. As I think what you might call the opening statements have been made, I suggest we now move through those subject matters and deal with any issues that other parties wish to raise. We have before us, as I understand it, those amendments which the opposition wishes the Senate to insist on and an amendment from Senator Brown.The first subject matter is that of the Racial Discrimination Act. The opposition has indicated that it wants the Senate to insist on opposition amendment RN42, which was the question of having as a footnote to section 7(1) the interpretation of the Racial Discrimination Act and its relationship to the Native Title Act as decided by the High Court in the Western Australian case. The government examined that at the time. As I said in the chamber at that time, we did not believe that the mere provision of a footnote was sufficient to restrict the potentially wide application of proposed section 7(1), with the potential for quite significant legal consequences of a kind we described that could open to very significant legal challenge everything and anything done under the act.We operated on our own independent legal advice on that score. In the face of that legal advice what we have done, in agreement with Senator Harradine, is to take the footnote as proposed by the other parties and put that as a substantive clause into the bill and to say that that meaning is the only meaning which section 7(1) can have. Therefore, we gave substantive effect to the restricted meaning which the High Court indicated it thought the sections in the act had so as to ensure that the relationship of the Racial Discrimination Act to the Native Title Act is as was described by the High Court—that is, that the exercise of powers and functions under the Native Title Act should be performed in a non-discriminatory fashion, which we totally endorse, and that, to the extent that there is any ambiguity in any parts of the NTA, the RDA can be referred to to deal with that ambiguity.We think that is an appropriate and sensible approach. I would not have thought it should meet with opposition, given that what we are effectively doing is putting a footnote that the other parties have agreed to into the substantive clause to ensure that the sorts of unknown legal consequences which the former Keating government was anxious to avoid in relation to this matter are avoided while ensuring that proper regard for the Racial Discrimination Act is made. To the extent that the High Court saw some application of the Racial Discrimination Act in respect of the Native Title Act, that is reflected in the new act.20:38:005030Bolkus, Sen NickSenator BOLKUSXE4SAALP00—The opposition insists on the amendment that was carried by the Senate during the last debate that we had on this issue in April this year. We do so because we think the principle that was embodied in that amendment is totally different to what is before the Senate now. We also do so because there has been a great degree of misinformation in respect of what the government and Senator Harradine are proposing to this chamber this time around. The public has been misled, and, even just a few minutes ago as Senator Minchin explained the difference, I believe the public was misled again.This is not the same wording that was canvassed by this Senate in April this year. There is the addition of one word. Some might say that it is just one word, but that word `only' has a very great impact on the breadth of operation and effect of the RDA clause. It is not the same as that which was discussed in April this year. Witness to that is the fact that, when we did pass a clause in April this year and had that clause embodied in the package that left the Senate, there was enormous hysteria—in this place, outside of this place—about the impact of that particular clause. We were led to believe by the government and others that that particular clause would lead to `bucket loads of uncertainty', that we would be back in the courts and that every section by section of this particular legislation could potentially struck down because of the impact of that clause. They are not running those arguments now because they quite well understand that, by amending what is before the Senate now, they are having a huge impact on the effect of that particular clause.We always believed that the RDA clause would have three effects: it would assist an interpretation of vague provisions in this legislation, it would have an impact in terms of functions performed and powers conferred to be authorised by the Native Title Act, and it would ensure that whatever package was passed in this Senate, in this parliament, would be assessed not strip by strip, clause by clause, subsection by subsection but together with the pre-existing Native Title Act as to its discriminatory nature—and, if, as a package, it failed, then the legislation would have failed. We made that clear, Senator Harradine made that clear; it was made clear after lunch on one occasion, and it was made clear consistently.This particular clause, as has been proposed today, lifted from the status of a clause note into a subclause of section 7, has its pernicious effect in the way that the clause has been redrafted. As a consequence, we do not find it attractive. To see evidence of the effect of what the government has done, one only has to have listened to Senator Minchin a few minutes ago and then go to the speech of the Attorney-General in the House of Representatives last Friday in which he drew attention to the new section 7. He said:Section 7 deals with the relationship between the Native Title Act 1993, including as amended by this bill, and the Racial Discrimination Act 1975.He says its effect was considered by the High Court in the Native Title Act case in 1995 and that a certain effect was given to section 7 in that particular case. Quite importantly, he goes on to say:The amended clause—the one that is being put before us now.is intended to clarify any confusion over the operation of section 7 by replicating in legislation the High Court decision. It is not intended to modify, reverse or undo the effect of the High Court decision. Accordingly, although new section 7(1) states that the Native Title Act is to be `read and construed subject to the provisions of the Racial Discrimination Act', the effect of this provision is explained by and limited to the matter set out in subsection (2)—that is, the Racial Discrimination Act will apply to powers and functions conferred or authorised by the Native Title Act. For example, the Native Title Registrar must not engage consultants and staff in a way that adversely discriminates on the basis of race.The Racial Discrimination Act will also be relevant to construing the meaning of any ambiguous terms in the Native Title Act. But that is the extent to which the Native Title Act is to be read and construed as subject to the Racial Discrimination Act.It picks up two links, but it does not pick up the important link that non-government senators were keen to press during the last debate. Okay, there was some division between non-government senators as to how far we were going and what we were doing, but I think everyone understood that the one thing that we were doing was putting in a benchmark against which this legislation would be tested, and that benchmark was that we did not want to discriminate against one particular race. This clause, as amended—small amendment in size, big amendment in impact—has the effect of taking away the third and most important leg of what we wanted to do.Doesn't this epitomise how far backwards this country is going? As I said last time, we would not be here, we would not be having this debate, if it was not for the fact that in 1975 the Whitlam government, contrary to the opposition of the now Prime Minister, introduced the Racial Discrimination Act. That act was quite pivotal to the decisions in Koowarta and Mabo. That act basically gave birth and protection to the concept of native title. We would not be here without it, but what we are doing, what we have been asked to do, by this deal that has been worked out between the government and Senator Harradine is to ditch the important aspects of that legislation. Senator Harradine, you can shake your head all you like, but what you are doing here is ditching precisely the point that you fixed on during the last debate.6H4HARRADINESenator Harradine—You've got to do better than that.XE4Bolkus, Sen NickSenator BOLKUS—You are ditching precisely that point, Senator Harradine, and no degree of smiling can betray the fact that you are now ditching an important leg. Before lunch and after lunch, it was different. You have taken some time to re-positioned yourself again. The impact, as expressed by the Attorney-General, is to deny effect to what you resolutely stuck to last time.It is not just a form of words that we are playing with here. We are talking about non-discriminatory principles. In a country like Australia, which is evolving and defining its identity, those non-discriminatory principles have really raised our status throughout the world. We are basically saying here that they are no longer as important as we thought they have been for the last 23 years. We are saying that the RDA clause that brought and protected native title is no longer important in the way that we run the affairs of state. Forget all this talk of a fair go in our community if you want to go down that road. If you are not going to apply a non-racially discriminatory principle, all the protection that we claim to offer the diversity in our society is also imperilled by the stand that we are taking today.What we ask is not a capacity for this bill to be assessed clause by clause as to its discriminatory aspects. We recognise that under the international covenant and under the Racial Discrimination Act there is the provision for an assessment of a measure as a special measure. To give full effect to that covenant, it is important to give effect to and recognise that this avenue is available to us. We say that you can get your certainty but that you also need a non-discriminatory package going through this parliament. That is why we have maintained that the clause put up last time gives that degree of protection.The government and Senator Harradine may continue to run their lines in the media, but the important point here is that this clause is vastly different in impact. As a consequence of that, the government is now supporting it and the protection against racially discriminatory legislation is rendered useless. That is why we are pressing with opposition clause RN42, which was carried last time. Unfortunately, it has not been able to survive the arrangement between Senator Harradine and the government.20:47:005032Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—The Australian Democrats will be supporting the opposition's amendment. I presume that it is exactly the same wording as last time. We do not have that wording in front of us, do we?XE4BOLKUSSenator Bolkus—No, we don't.HX5Woodley, Sen JohnSenator WOODLEY—I just have a sheet which describes it. We supported it last time, and for the reasons which Senator Bolkus spelt out. Let me add that the reasons why we supported it last time have not changed. We need some explanation from the government as to why it is bringing in this amendment, which is certainly an out for it.We supported this opposition amendment last time because we cannot understand anyone proposing an escape clause whereby the Racial Discrimination Act can be evaded. To us, the Racial Discrimination Act is fundamental to relationships in this country. How on earth you can justify watering it down or having some escape clause, no matter how you dress it up, is a mystery to me. The problem last time was that it was quite clear the government recognised that parts of the Native Title Amendment Bill as proposed by the government were racially discriminatory. There was no doubt about it, and government members recognised it. It is quite clear, in recognising that, that they are now trying to cover their backs. The Australian Democrats will not have a bar of it. We are happy to support opposition amendment RN42 because we believe that it is fundamental to the future of this nation and to relationships between peoples in this country that the Racial Discrimination Act is basic to those relationships. Any attempt to water it down or dress it up in any way as an escape clause is abhorrent to the Democrats. We will, therefore, support the opposition.20:50:005032Harradine, Sen BrianSenator HARRADINE6H4TASIND00—Let me make one point very clear. As everyone in the chamber knows, the government objected to the RDA provision going into the bill. It has now accepted it going into the bill with its accurate meaning. It has been stated that the RDA's inclusion in the bill is vitiated because of the word `only'. You really have to do better than that.XE4BOLKUSSenator Bolkus—What effect does the word have? You explain it to us.6H4Harradine, Sen BrianSenator HARRADINE—Let me say this to you in respect of proposed new sections 7(2)(a) and (2)(b): there is absolutely no difference between the meaning and intent of the note inserted in April and proposed new sections (2)(a) and (2)(b); that is, the note was intended to show what the section, as amended in December, means and only means. That was determined in Western Australia v. The Commonwealth. It is precisely what you voted for.XE4BOLKUSSenator Bolkus—That's not true, and you know it.6H4Harradine, Sen BrianSenator HARRADINE—You are talking about the word `only'. You should know that there are only two ways of construing the meaning of words legally. One is saying that x includes y, which then presupposes that it means something else other than y, or that x means y and only y. The fact is that you knew as well as I did when we were dealing with this matter what x meant. It meant y and y only.The RDA provision meant exactly as was stated in Western Australia v. The Commonwealth. Let us not kid ourselves. We are not in the game of saying that x = y + abc, and you were not, either. But, if you are saying that x includes y, why would you do that if you did not want it to mean y + abc? But, if x equals y, let us say that it equals y so that there is no ambiguity and so that there is no misunderstanding. The victory that has been achieved is that the Native Title Act must be read and construed subject to the Racial Discrimination Act. If we mean that, let us put it in—and it is precisely what we do mean.20:54:005033Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I have a few things to say. I think that if one were to look back at the debates on this matter, one would find that I did, in fact, comment on WA v. The Commonwealth, and I commented on the clause that was part of the Native Title Act—and still is—the one that we are seeking to amend. I said at the time that was not enough. We acknowledged that it did not go far enough. We also acknowledged on the record that the decision of WA v. The Commonwealth basically demonstrated to the whole world that 7(1) was not enough by way of a protection. We also had that discussion about special measures. Senator Harradine involved himself in that debate as well. We remember that quite clearly too.It was Senator Harradine's intention then to ensure that a benchmark of the Race Discrimination Act be applied to the bill as a parcel as it amended the Native Title Act, and the assessment would have to be made as to whether this bill complied with the RDA as a special measure. That is in the debate. It is in the Hansard; it is in the record. But we have before us the words of Senator Minchin and the Attorney-General, Mr Williams, who now tell us quite clearly that that assessment is not going to be part of the regime by the fact that we have actually changed those words.Senator Harradine, I will ask you a question. On the Sunday program just a few days ago you said, `The Racial Discrimination Act override is to be there.' Mr Williams does not agree with you about the impact of the RDA clause. Can you explain? Is he wrong or are you right—or is it the other way around?20:55:005033Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I thank Senator Bolkus for the invitation. The position is as I described it and as is described in the explanatory memorandum that accompanies this bill. Have a look at it. That explanatory memorandum points out very clearly what we are doing. The new subsection reflects, or replicates, what is intended as described by Western Australia v. The Commonwealth. I might remind you, Senator Bolkus, of the fact that on 6 April I tabled exactly what I meant about this provision. You should be aware of that, because what I tabled then was an opinion which is headed `Notes concerning the RDA amendment'. I do not intend to read it all because it is three or four pages of very small print. It should be clear to all honourable senators in the committee what was intended at that time by the inclusion of that note in section 7(1). The provision, the note, now being put up into the subclause truly reflects that position.If Senator Minchin wants time to read that note, we should perhaps give him time. But I make it perfectly clear that what I did then was what I meant to do. That clearly indicates how this provision of the RDA would interface with the Native Title Amendment Act.20:58:005033Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I have read the explanatory memo. On page 4, I came across a paragraph that says:Subsection 7(2) makes it clear that the RDA will only operate on subjects outside the NTA and only be relevant in construing ambiguous terms in the NTA.I find that sits rather oddly with Senator Harradine's claim to Laurie Oakes that the Racial Discrimination Act override—he called it an `override'—is to be there. We can argue about words, but I would like to know to what extent Senator Harradine now sees the RDA clause as having the capacity to override the Native Title Act. As I said before, he never really anticipated it being an instrument by which and through which each particular section of the Native Title Act would be viewed in isolation.Does Senator Harradine still think now, as he thought in April, that the RDA clause will have the capacity to trigger an assessment of the Native Title Act in full, as amended, as compared to non-discriminatory principles? If he does not think that, I think the words he used on the Sunday program may be inappropriate. That is something I would like to hear Senator Harradine answer.21:00:005034Harradine, Sen BrianSenator HARRADINE6H4TASIND00—Of course, if it is going to be used to deal with ambiguous terms—what you have said it could deal with—it will because the overrider is there. That is not a technical word. It is a word which indicates quite clearly that the provisions of the Native Title Act should be read and construed subject to the provisions of the RDA.Let me remind you what I said on the last occasion we were debating this matter when I was trying to indicate to the government the view which I thought the majority of the Senate held at that particular time. The government's attitude was that the RDA clause would create uncertainty in the administration of the Native Title Act. That is why they did not want it in there. I said:First of all, I suggest to the minister that, far from creating uncertainty,the way the opposition's amendment is now framed is going to give you considerably more certainty than otherwise.I was arguing a case. I continued:Surely it is not considered that proposed section 7(1) is ambiguous because it speaks of the Native Title Act being `read and construed subject to the provisions of the Racial Discrimination Act'? It does not say the Native Title Act is `subject to the RDA'. That is a matter of which the government should take full consideration. Presumably it would be much more uncertain if it said that the Native Title Act is `subject to the RDA', but it—that is, the amendment—says that the Native Title Act is to be `read and construed subject to the provisions of the RDA'.If the government's argument is that proposed section 7(1) is ambiguous, the ambiguity can be removed by a statement of the parliament in a manner which will give effective guidance to the interpretation of the law by the courts. This is precisely what the opposition's amendment does. It takes note 301 from the High Court in Western Australia v. The Commonwealth and incorporates it into the legislation. The actual note before us says:`The provisions of the Racial Discrimination Act 1975 apply to the performance of functions and exercise of powers conferred by or authorised by this Act.'I would have thought that that ought to have gone into the legislation as a substantive clause in any event, and I would not have thought the government would have any objection to that first sen tence of the note. The second sentence is, as I noted, from WA v. The Commonwealth, footnote 301, and says:`To construe this Act, and thereby to determine its operation, ambiguous terms should be construed consistently with the Racial Discrimination Act 1975 if that construction would remove ambiguity.'Then I made the point very clearly:Of course, that is not a clause-busting provision. It is all very right and glib to say that we need a clause-busting provision so as to bust clauses that are racially discriminatory, but that does not even go near facing up to the facts and also the need to have a degree of certainty.I am acting perfectly consistently. What the government have agreed to in respect of the RDA clause is a very substantial change from their previous attitude. As honourable senators will see, the government have stated the clause perfectly clearly so there is no misunderstanding at all. They have used the word `only' so as to achieve clarity and to achieve what I was saying on the previous occasion. As I indicated to you, that is not diminishing in any shape or form the effectiveness of that clause which is now to be inserted in the Native Title Act. As I indicated before, by the use of the word `only', X means Y—and that is it. Or do you think that X should mean something else than Y? I think that is a question that should be answered by the opposition. Do you think that it should be something other than those two matters that we have in those two subclauses?21:05:005034Bolkus, Sen NickSenator BOLKUSXE4SAALP00—When I went to school X meant X and Y meant Y, and there was a difference between one and the other. I think there is a difference here as well. There are two points that need to be made here. Obviously we have parted ways on this. If we recollect the last debate, we were in one position and Senator Brown had another position. Senator Brown's position was that of the clause buster. It was a position that we did not agree with.6H4HARRADINESenator Harradine—That is right.XE4Bolkus, Sen NickSenator BOLKUS—That is right. Neither the opposition nor you, Senator Harradine, agreed with the clause-busting capacity in the RDA clause. But what we did agree with was a capacity to use our RDA clause as a benchmark against which the act, as amended through this process, could be adjudged as to its non-discriminatory nature as a package—as a special measure. The government had problems with that. Senator Brown had problems with our limiting the impact of the RDA to merely that. He wanted to go one step or maybe a few steps further. But that was the difference in the debate.I note that, in addressing the issue before us this evening, you have not really addressed what your position was in respect to the special measure trigger. You have discussed what the government now claims to be the effect of this clause. You have dismissed any consideration in the previous debate as to the clause-busting nature. But, in terms of a package busting capacity, if you want to put it that way, in an assessment of the act as amended being discriminatory or not, we were keen to ensure that that was the effect of the RDA clause. I am sure you have gone through the debates and so on and refreshed your memory, but I have vivid recollections of the discussion both last time and the first time as to the impact of this clause. That is the capacity that I believe to be entrenched and that is the capacity that, on the words of the government and on the words of the explanatory memorandum, we do not have now.That is why the government makes it very clear in its explanatory memo that the single word `only' is important. It made it very clear in the paragraph of that memo I read earlier on. Senator Harradine, we have parted ways. We can drag this on for quite some time, but I want to hear why we now no longer have the capacity in this clause to have an assessment of the whole package—whether it constitutes a special measure or otherwise as opposed to focusing on the clause-busting capacity of the previous trigger.21:08:005035Brown, Sen BobSenator BROWNQD4TASAG00—Senator Bolkus is quite right. There are three levels of looking at the racially discriminatory outcomes of this legislation. The first is one that Senator Harradine appears to have been reduced to now—I note he is running this debate while Senator Minchin sits back over there—that is, if there is a clause which may be racially discriminatory, the court can then confine it to its non-discriminatory definition. That is so limited as to have a very tiny impact indeed on the overall racial discrimination that is built into this act.What Labor wants to do through this amendment is to ensure that the bill overall is not allowed to be racially discriminatory—if you take it in toto. In that case, the court could strike it down. What the Greens, and I think our friends in the Democrats, are maintaining—and Senator Margetts was very strong on this—is that nothing in this legislation should be racially discriminatory. How dare we knowingly pass through here legislation that discriminates against the indigenous people of this country. Worse still, how dare we take the teeth out of the Racial Discrimination Act so that it will not have sway. In other words, Senator Harradine has just admitted that he knowingly is supporting racial discrimination. Don't wince over there, Senator Minchin. That is what this is saying, otherwise you would have supported the Greens' position. Senator Harradine refers to it as clause busting. It sounds terrible, doesn't it? That is not what it is. It is discrimination busting amendments that we were about.Senator Harradine interjecting—QD4Brown, Sen BobSenator BROWN—Do not distract me, Senator Harradine.Senator Harradine interjecting—QD4Brown, Sen BobSenator BROWN—My argument is with you, but you are welcome to get up and defend your position. Senator Bolkus is right, the government and Senator Harradine—the Howard-Harradine pact—are reducing this—10000CHAIRMANThe CHAIRMAN—Would you please refer to people by their correct titles.QD4Brown, Sen BobSenator BROWN—What is the full term I should use there?10000CHAIRMANThe CHAIRMAN—The correct titles. I am sure you understand them.QD4Brown, Sen BobSenator BROWN—The pact is racially discriminatory. The bucket loads of extinguishment are testimony to that, if anything more needs to be said.Let us get around the cant here and the deception, even if it is self-deception, be it practised by the government or by Senator Harradine. Senator Harradine says that the Racial Discrimination Act amendment is to avoid clause-busting consequences, that is, to avoid knocking out racially discriminatory clauses in this legislation. You cannot get around that. That is what the aim is—to discriminate against indigenous people in this country by knocking out the law that would prevent that, by knocking out the teeth of the Racial Discrimination Act.We have had this debate before, but now we are at the point where the amendment that is being sought here will knock out the ability of the court, if the RDA is read as pre-eminent over this legislation, to find this legislation to be in toto racially discriminatory. Not much is left after that.21:13:005036Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I am sorry that people do not appreciate fully the significance of this. Senator Bolkus would understand that Senator Brown's remarks would have been directed at him. When he moved the amendment, he made it perfectly clear to the chamber that he was not moving the amendment so that it could be a clause-busting provision. He made that perfectly clear.I would like to point out a simple matter. The government has agreed to have the act read and construed subject to the provisions of the Racial Discrimination Act. Clearly, everybody ought to applaud that. I do not see anybody around the place giving credit where credit is due. The government has at last come to the situation where it will accept the override of the Racial Discrimination Act.XE4BOLKUSSenator Bolkus—It is not an override.6H4Harradine, Sen BrianSenator HARRADINE—`Override' is a layman's term, I know. But the point is that it must be. It says:This act is intended to be read and construed subject to the provisions of the Racial Discrimination Act.Then it goes on:Subsection (1) means only that:(a) the provisions of the Racial Discrimination Act 1975 apply to the performance of functions and the exercise of powers conferred by or authorised by this Act; and(b) to construe this Act, and thereby to determine its operation, ambiguous terms should be con strued consistently with the Racial Discrimination Act 1975 if that construction would remove the ambiguity.Wasn't that the footnote that was included in the proposal last time, and in what I believe Senator Bolkus is saying? The difference is that the word `only' is there:Subsection (1) means only that . . . As I have said before—there are some mathematicians around here—if you have X equals Y and X equals only Y, what is the difference? You are quibbling about `only'. If you take out the word `only', what is the difference?NaN:00:005036Bolkus, Sen NickSenator BOLKUSXE4SAALP00—It is a difference I mentioned earlier. When you and I and others supported the clause the first time round, we actually contemplated that it would have a wider effect than what is now deemed to it by the government. Paragraph 2 on page 4 says that it will only operate on subjects outside the NTA and only be relevant in construing ambiguous terms in the NTA. When you canvassed this in December last year and in April this year, you made the right point. You made the point that 7(1) as it stood was inadequate. The point you made in Hansard on 6 April was:. . . it should be noted that the High Court said:Section 7.(1) provides no basis for interpreting the Native Title Act as subject to the Racial Discrimination Act.That is something that account should be taken of by the whole of the committee, including the government.You quite rightly said:. . . the fourth point that I am putting to the government is that failure to respond to the High Court's criticism of section 7(1) would send the wrong message to Australia and to all Australians. The fifth point is that the presence in the Act of an effective section 7(1) enhances the prospect that the Native Title Act, as amended by the Native Title Amendment Bill 1997 [No. 2], will be held to be constitutionally valid . . .The two points that you made then are the points I am making now: 7(1) in itself needed beefing up. I am on the record as saying earlier that it did need beefing up.The fifth point you made is also quite relevant. In terms of the RDA, where there was a provision in the act, as there was then, that would have raised the opportunity for the act to be assessed against the Racial Discrimination Act and the international covenant as a parcel then you would have a mechanism through which the act could be constitutionally valid though some clauses of it may not pass the non-discriminatory test.You say that you bring a layman's view to this and that override is something you still think we have in respect of the effect of the Racial Discrimination Act clause. The Attorney-General and the government do not believe it is an override. They see it as a tool to interpretation, a tool to clearing up ambiguity in terms of functions and powers under the act. Maybe you do disagree with the government as to the effect of the RDA clause. Maybe you still believe that the impact, the effect, of what we are doing now is the same as we did last time and that the word `only' has no impact. As a consequence of such a belief you might believe that that capacity to assess the legislation as a special measure is still an effect of the clause that you have agreed to. We just do not know that because this debate has not been able to elucidate your views as to whether that is so. We dismiss clause busting, we acknowledge interpretation, but that middle ground of the clause providing a benchmark for assessment of the act as amended as a special measure is something which I believe you thought was an important part. As you said, it helps in terms of constitutionality. I believe you thought that was important last time, but I am not so sure that you still think that is an effect of the clause before us as proposed by the government and by yourself.That is the reason for our amendment. The word `only' limits the effect, and one of the effects excluded is the one that we thought important.21:21:005037Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I need to ask Senator Bolkus a question because we do not have the wording of the opposition's amendment in front of us yet. I am prepared to accept it and the reasons which Senator Bolkus gives. However, in December the joint amendment that was moved, which, of course, would be the Democrat's most preferred position was:(1) To avoid doubt, it is expressly declared to be the intention of the Parliament that the provisions of the Racial Discrimination Act 1975 shall prevail over any provisions of this Native Title Amendment Bill 1997.(2) Nothing in the Native Title Amendment Act 1997 shall be taken to authorise any conduct, whether legislative, executive or judicial, that is inconsistent with the provisions or operation of the Racial Discrimination Act 1975.That is a very clear amendment and expression of what the Democrats would prefer, but I presume that your amendment does not say all of that. Can you spell it out for us?21:22:005037Bolkus, Sen NickSenator BOLKUSXE4SAALP00—The amendment that I am submitting now is the one that was accepted by the Senate last time. As I said earlier, Senator Brown's amendment—which is, I think, the one you just read out—is the amendment that the opposition did not support last time because of that so-called clause-busting capacity. The amendment that we adopted in the Senate reads as follows:7. . . (1) This Act is intended to be read and construed subject to the provisions of the Racial Discrimination Act 1975.(2) Subsection (1) does not affect the validation of past acts or intermediate period acts by or in accordance with this Act.Then there was a clause note which is, in essence, the amendment that is before us, proposed by the government and Senator Harradine now. As I have said a number of times, that clause note, in becoming a subclause, has also picked up an extra word and, as a consequence, has picked up a much more limited impact.21:23:005037Harradine, Sen BrianSenator HARRADINE6H4TASIND00—A much more limited impact? So we must look at the clause. If there is any ambiguity in the clause, you go to the explanatory memorandum. What the Attorney-General says, as far as a judge is concerned, is irrelevant if the terms of the clause are not clear on the face of it. I come back to the point that all you want to do is to take the word `only' out.XE4BOLKUSSenator Bolkus—Why don't you agree with it?6H4Harradine, Sen BrianSenator HARRADINE—Just a minute. All you want to do is to take the word `only' out. I come back to my mathematics: X equals Y and X equals only Y. If you retain the word `only', what is the difference between X equals Y and X equals only Y? I just cannot see what we are all getting at. We are just sitting around the place arguing about what seems to be obvious.Are you saying that, by deleting the word `only', it changes the meaning? Is that what you are saying? Don't go arguing and quoting the Attorney-General as to what he might think about it. As we know, in the interpretation of legislation the courts look at the terms of the section of the act and, if it is clear on the face of it, then there is no need for an aid to the interpretation of the law—for example, in looking at the explanatory memoranda. I come back and ask the simple question: what is the difference in X equals Y and X equals only Y if you take out the word `only'? If you say, `There is no difference. You go ahead and take it out,' I will not, because I want to have certainty.21:26:005038Bolkus, Sen NickSenator BOLKUSXE4SAALP00—In your interpretation, X equals A and B; X has the effect of either A or B. That is what Senator Minchin and Mr Williams have said. In the interpretation given to this clause by the government, the clause has one of two effects, and that is spelt out in the explanatory memo on page 4: it will only operate on subjects outside the NTA and only be relevant in construing ambiguous terms in the NTA. X equals A and B.In my interpretation, X equals A, B and C; C being that there is a capacity for the whole act to be assessed against the Native Title Act and the international covenant. If A and B equals Y, then your X equals Y. But the X that we adopted in April this year and in December last year equals Y plus C. You are deleting that C.Anyone listening to this debate must be wondering what we are on. The effect of what we are talking about is that there were three legs to this clause in December last year and in April this year. Now there are only two. I refer you, Senator Harradine, to that paragraph on page 4 and also to Senator Minchin, who said that he does not see the effect of the clause, as proposed, as having a broader impact than what is spelt out in the explanatory memo.You still have not answered the question as to whether you see that act testing benchmark still available under the legislation as you propose now, as it was available in December and April. So the short answer is: your X equals Y; the X that we agreed to last December and in April this year equals Y plus C.21:28:005038Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I must be misunderstanding something here. We are using, and the government has agreed to use, precisely the words that you had as a footnote on the last occasion. Presumably you do not mind those words coming up into the clause, so we will have those very same words in the clause. It has nothing to do with C; there is no C there.What I am coming to and what I have indicated to you—I will just say it for the last time so that everybody can get it clear—is that if a judge looks at the words of the section on the face of it and they are clear, the judge does not need any other aid to the interpretation of that law, including explanatory memoranda. It comes back to this: you want to see the word `only' taken out. It comes back to the same point that I have made all along: what is the difference between X equals Y and X equals only Y? With that, I conclude my comments on this clause.21:29:005038Bolkus, Sen NickSenator BOLKUSXE4SAALP00—For me, the word `only' acts as a limitation on the impact. Senator Harradine, for you the word `only' is insignificant and meaningless. If it is so insignificant and meaningless, why don't you take it out? That is a challenge for you: why don't you agree to delete it? If you agree to delete that, we will cop it as a subclause. If you say it is so meaningless and irrelevant, delete it. Of course, if you acknowledge it has got some impact, you won't want to delete it. But, if what you say is right and if you believe in your conviction as to your interpretation, delete the word `only'.21:30:005038Harradine, Sen BrianSenator HARRADINE6H4TASIND00—Let me make it perfectly clear that I am not going to vote for anything of yours. The Labor Party has indicated that it is not going to support any of the matters that I had to convince the government on.XE4BOLKUSSenator Bolkus—That's not right.6H4Harradine, Sen BrianSenator HARRADINE—What did you do in the House of Representatives? You voted against the whole lot, even though some of these clauses are using precisely the same words as yours. I argued with the government for two weeks to try and get amendments to this legislation to improve it on the basis of material some of which came from the Labor Party and from the indigenous working group. Don't you recognise the particular wording there? Why didn't you just grab it? In respect of this matter, I am not going to change my view on it at all. You have said here that subsection (1) means that, and you say (a) and (b). Do you mean that subsection (1) means (a) and (b), or do you mean it means something else than (a) or (b)? I will read it out:(2) Subsection (1) means only that:(a) the provisions of the Racial Discrimination Act 1975 apply to the performance of functions and the exercise of powers conferred by or authorised by this Act; and(b) to construe this Act, and thereby to determine its operation, ambiguous terms should be construed consistently with the Racial Discrimination Act 1975 if that construction would remove the ambiguity.What we have done is to say that it means only that. Perhaps you think it means something more than (a) and (b).21:32:005039Bolkus, Sen NickSenator BOLKUSXE4SAALP00—That is precisely the point. We did think it meant more than that. We adopted it and stated that it meant more than that, and so did you, Senator Harradine. Senator Minchin is biting at the bit over there.LI4PATTERSONSenator Patterson—Chafing at the bit.XE4Bolkus, Sen NickSenator BOLKUS—Biting, chafing—it sounds the same from here. I ask Senator Minchin what effect he thinks this clause has. Does it have just those impacts that Senator Harradine thinks it has, or does it have more? Maybe the government can help us on this.21:33:005039Harradine, Sen BrianSenator HARRADINE6H4TASIND00—May I just say something. I have made the point that there is no difference between X equals Y and X equals only Y. Every time that Senator Bolkus gets up in this chamber and says, `What we mean is (a) and (b),' we have got to look around for (c). Every time from now on that you get up and say, `What the opposition means is (a) and (b)' and imply that no, it means more than (a) and (b), I will be looking around for (c).21:34:005039Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I will tell you what: if you want to look around and find (c), I suggest you look at your contributions in the previous debates.21:34:005039Brown, Sen BobSenator BROWNQD4TASAG00—I am indebted to Senator Crossin for the observation that if X equals Y and Y equals 10, you could also say Y equals 100 minus 90, but you cannot if it means only 10. What has happened here is the confusion between mathematics and the law. They are too different things. Once you get into saying that one discipline equals another, you get into difficulties. The question I would like to ask Senator Harradine is this: with this formulation, is it possible that there would be a clause which wholly discriminates against indigenous people that could stand?21:35:005039Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—We have been debating this one amendment for over an hour and I think we are going around in circles. The explanatory memorandum makes it abundantly clear what the government believes the section to mean. That is based on good legal advice. We understood, I must say, that that is what the note that the opposition sought to have added to this section in the first place was to restrict the meaning to. Certainly we were not aware that there was this option (c), so to speak, floating around. That is why we are a bit surprised by the opposition to this.The opposition was keen to ensure that this section was not the so-called clause buster, and we accept that you do not want this clause to have that effect. All we have done is take the very words that the opposition sought to have added in the note and put them into the clause, because we understood that the opposition was keen to avoid the uncertainty that would flow from this particu lar section 7 having any other meaning than that described in the note. So we have put it into the clause itself, and we have deliberately put the word `only' in there to ensure clarity and certainty, which we understood the opposition was also keen to achieve. I do not think this debate is going any further. It has been over an hour. I respectfully suggest that this question be put.21:36:005040Bolkus, Sen NickSenator BOLKUSXE4SAALP00—There is one question I need to ask Senator Minchin before we do that. Does he believe that the clause as now proposed by the government and Senator Harradine will have any effect at all to provide a capacity to assess the legislation, the Native Title Act as amended, as against the non-discriminatory principles spelt out in the Racial Discrimination Act?21:36:005040Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—The problem with the proposed meaning that the opposition is canvassing is just that, that you are really saying you want the Native Title Act subject to the Racial Discrimination act. That is the very thing that Senator Cooney, in his very wise judgment in that committee that reported to the Keating Labor government, said would be disastrous. The High Court in 1995 interpreted this clause only to mean the things set out in section 72 and at no stage did the Keating Labor government object to that. In the Native Title Amendment Bill, which the Keating government produced at the end of 1995, there was no provision for changing that meaning at all. That meaning was accepted by the Keating Labor government.We are not prepared, as we have said many times, to open up an unholy uncertainty in the whole operation of the Native Title Act by subjecting it to the Racial Discrimination Act because, as you well know, the thousands of leases and licences et cetera that are and will be issued under the Native Title Act would each and severally be subject to potential challenge as being inconsistent.If you think there is something wrong with the Native Title Act as amended with regard to the races power in the constitution, chal lenge it and let us test that. But, as we have said time and time again, to subject the whole of the Native Title Act to the Racial Discrimination Act, another piece of Commonwealth legislation, in the way you are proposing would be to make it a clause buster, which you have just said you do not want it to be. You cannot have it both ways.We have amended the provisions relating to the Racial Discrimination Act in the way we understood the opposition wanted them to be amended—in other words, according to the note that the opposition amendment has. That is exactly the meaning that the High Court gave to it and that is what we are putting into the Native Title Act.21:39:005040Bolkus, Sen NickSenator BOLKUSXE4SAALP00—With regard to that answer, it is important to note that it does not give an effect to this particular clause that would allow it to be used as a benchmark to assess the Native Title Act as amended as a special measure, for instance. Senator Harradine, in your contributions in December 1997 and April this year you did give it that effect. I wonder now whether Senator Harradine sticks with his interpretation as of December and April or whether he now agrees with Senator Minchin.21:39:005040Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I thought that we dealt with that clause buster on the last occasion. I am supporting what I supported last year; that is, subsection (1), which is the subsection that says that the act is intended to be read and construed subject to the provisions of the Racial Discrimination Act. I have made it perfectly clear that I agree with the proposition which was included in the footnote. That means (a) and (b), as is provided here. That is it—full stop. As I said, they are very clear on the face of it. Either it means only that or not. I come back to the X equals Y. It means X equals Y, and X equals only Y. This debate is getting to the stage where we seem to be in Wonderland, where the Queen said that the words meant what she meant them to mean.XE4BOLKUSSenator Bolkus—You're the king of this castle.6H4Harradine, Sen BrianSenator HARRADINE—Somebody else is the Queen. Are you the Queen?XE4BOLKUSSenator Bolkus—No.21:41:005041Brown, Sen BobSenator BROWNQD4TASAG00—Professor Blackshield of Macquarie University noted once that an essential element of negotiations surrounding the Native Title Act in 1993 was the assurance given to Aboriginal negotiators that the full effect of the Racial Discrimination Act 1975 would be preserved. But it was found that the provisions in the act were ineffective. I again ask of Senator Harradine—and silence here, I take it, is consent—is it the case that racially discriminatory clauses in this legislation, which I maintain are there, for example the taking away of the right to negotiate on a whole range of matters, will stand under this RDA amendment? Is it not a fact that this RDA amendment is to clear up doubt where there are alternative interpretations or ambiguities, and that is all? Where there is no ambiguity, the clause is racially discriminatory and this amendment will have no effect. That is, Senator Harradine is backing an amendment knowing that it will allow racially discriminatory clauses in this legislation to stand.21:43:005041Harradine, Sen BrianSenator HARRADINE6H4TASIND00—The simple answer to that is that we have the Native Title Act amendment legislation before us to determine. We should ensure that no clause of that legislation is unnecessarily racially discriminatory. Some of those clauses are racially discriminatory in favour of the Aboriginal people. That is the position; I thought you would have known that.21:39:005041Brown, Sen BobSenator BROWNQD4TASAG00—Not unnecessarily racially discriminatory. What Senator Harradine is saying is that necessarily racially discriminatory clauses will stand, and that is the point of this whole sordid exercise. Racially discriminatory provisions in this legislation will not be affected by this amendment. That is why the Greens tried to have what were called clause busting provisions. We tried very hard early on to knock out racially discriminatory provisions in this legislation. It is a very important point. Nobody here is going to get up and say that clauses which are clearly racially discriminatory in this legislation will be knocked out by this amendment, because Senator Harradine, Senator Minchin and Senator Bolkus know that that is not the case.I just want to put that clearly on the record at this juncture because what it says, straight out, is that this legislation is racially discriminatory. Let us not quibble about that. What is worse, it is saying that these amendments are meant to protect the racial discrimination in this legislation. Where there are ambiguities the court will be able to rule in favour of the non-discriminatory interpretation, but where there are not ambiguities it is clearly discriminatory and the court's hands are tied behind its back. Let us be clear about that. That is why I think this is ugly legislation and that is why I think history will judge this legislation. Let no person in here who supports this amendment say, `I didn't know.' Let it be on the record that this Senate did know—and it went in with its eyes open—that this racial discrimination was done with intent.Senator Harradine might say, `Oh, well, there are provisions in here that could or do discriminate in favour of indigenous people.' Let us remember that this legislation is aimed at trimming back the rights and the recognition accorded by the courts of this country. It is not expanding them; it is trimming them back. To glibly say that there could be clauses in here that discriminate in favour of indigenous people is to throw a cloak over the fact that that is not what we are talking about. We are talking about discriminating against indigenous people here, giving the resource exploiters the jump and making sure that, where giving them that jump is discriminatory, the court will not be able to use the power of the Racial Discrimination Act 1975 to knock that discrimination out. I want that on the record, because it is not just the discrimination that is unjust here; it is the knowing discrimination that is so very, very wrong.21:47:005041Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I will not keep the committee. The committee will have heard what I said about unnecessary discrimination. I said quite clearly that the native title amendment legislation does have certain provisions which discriminate to the benefit of the indigenous people of Australia. Of course you do not want the RDA to be used as a clause busting provision in that circumstance.21:48:005042Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I just want to make a couple of points. One of the problems we have had in this whole debate is that it has been very difficult to get our heads around what is being proposed because most of us have not had the benefit of weeks of haggling and debate over these particular issues. We have only just been presented with them. I also want to mention the problems the Procedure Office has had in trying to draft any amendments for the Democrats. In the end, we felt that it was such an imposition on the Procedure Office that we simply would not proceed with amendments because it was becoming an impossible task. So I am a little bemused by the comments of some people who talk about having debated this for weeks. It would have been good for the rest of us to have had that opportunity as well, but we have not.The amendment which the opposition is moving is a position which the Democrats would accept as a very minimal position. What I read into the debate a little while ago was the position that we would prefer, and that is a very clear expression that the provisions of the Racial Discrimination Act 1975 shall prevail over any provisions of this Native Title Amendment Bill 1997. That really is the position we would prefer because it is very clear. It is not equivocal at all.This particular amendment moved by the opposition is not so different from the government, but we will still support the opposition's amendment to make the point. But let me point out that it does contain words that the Democrats have never accepted, and they are that subsection (1) `does not affect the validation of past acts or intermediate period acts by or in accordance with this Act.' As the chamber would know, and as people listening to this debate need to know, that refers to the illegal acts done by both the Labor and the coalition governments in Queensland between the passing of the Native Title Act 1993 and the Wik judgment. Those illegal acts were validated on the vote of the Labor Party and the coalition, over the objections of the Democrats and the Greens. There is no way that we can recover that issue at all; so what we are doing, in supporting the opposition position, is to make the point. Let me also make the point that it is very much a minimalist position and not the position we would prefer, which would be a totally unambiguous statement that the Racial Discrimination Act 1975 shall prevail over provisions of the Native Title Amendment Bill 1997. That would be our preferred position. I make those particular comments, while agreeing that we will support the opposition amendment.There is another statement that I need to make, and I think I will make it now so that the debate can proceed. It is to do with the whole position of the Democrats on this entire debate. It is an explanation of the role of the Democrats during the committee process. In making this statement, I wish to emphasise that our participation in the Senate debate this evening is and always has been, I hope, of a constructive note. We have sought to improve the government's legislation so that it accurately reflects the principles of justice, fairness and equity.I wish to put on the record that, in participating in this revamped committee process, we in no way put the Democrats' stamp of approval on the deal which has been struck between Senator Harradine and the Prime Minister (Mr Howard). As I understand it, it is the express wish of indigenous people that it be recorded that they do not support or approve of what has taken place between Senator Harradine and the Prime Minister either.As in the two debates previously, the Democrats have sought to improve the government's bill. Whilst Senator Harradine will say that his position is an improvement, at this stage of the debate we do not see that improvement going far enough. It may be an improvement on the government's 10-point plan. But I would point out that, in fact, the 10-point plan will now be between 90 and 95 per cent approved—and that clearly the 10-point plan, not only in the minds of indigenous people but in the minds of hundreds of thousands, millions of Australians, was a betrayal of indigenous land rights.So it does not represent the best protection of indigenous rights that this Senate, indeed this parliament, could afford. Since when does the bare minimum we can achieve constitute the best thing we can do for an indigenous people? Clearly, it is not the best thing we can do. The Democrats will make an assessment at the end of this debate on whether we will support the outcome of this committee process. We remain hopeful, as always, on behalf of our indigenous brothers and sisters.21:54:005043Brown, Sen BobSenator BROWNQD4TASAG00—I would just comment again on what Senator Harradine has had to say. If this legislation were discriminatory for indigenous people, then I do not think there would be much trouble in picking up on the opposition's amendment. After all, if we take Senator Bolkus's interpretation, what that amendment does is allow the court to look at the Native Title Act in totality and determine whether or not it is discriminatory.If it is, as averred by Senator Harradine, that the discrimination goes both ways and there is some balance involved in it, then he would not have any worry about it. Senator Harradine is saying that he does not want the opposition amendment here and, therefore, he does not want the court to be able to judge whether overall this legislation is discriminatory, let alone whether any clause contained within it is discriminatory.Through Senator Minchin, we have heard already that racially discriminatory clauses will stand in this legislation—and we have heard from Senator Harradine; he has accepted that case. He comes out and says, `Well, some of the clauses are discriminatory in favour of the indigenous people.'I do not believe that is the case at all. As I have said, this legislation is a contraction of what the two High Court cases have determined. This legislation takes away; it does not give. Looked at against those High Court rulings, this legislation is thoroughly discriminatory against the indigenous people of this country; it is in favour of big moneyed interests, resource extractors, leaseholders, people who want to exploit the oceans and so on. One flippant response has been, `Some of the clauses are discriminatory, being in favour of indigenous people.' I think that response, firstly, is wrong and, secondly, does nothing to cover the fact that there is an intent here to be racially discriminatory and, through the knocking out of this amendment, to prevent the court from making that finding.10000CHAIRMANThe CHAIRMAN—I will now proceed to put the question in relation to the Racial Discrimination Act, which is No. 1. This is a complicated process and procedure. The initial question is that the committee of the Senate does not insist upon the amendment, being opposition amendment RN42. This means that I would be expecting the government and those supporting the government to vote `aye' and those opposed to vote `no'. So I will now put the question that the committee does not insist upon opposition amendment RN42, to which the House of Representatives has disagreed. Question put.22:03:00The committee divided. (The Chairman—Senator S. M. West)33Abetz, E. Alston, R. K. R.Boswell, R. L. D. Brownhill, D. G. C.Calvert, P. H. *Campbell, I. G.Chapman, H. G. P. Colston, M. A.Coonan, H. Crane, W.Eggleston, A. Ellison, C.Ferguson, A. B. Gibson, B. F.Harradine, B. Heffernan, W.Knowles, S. C. Lightfoot, P. R.Macdonald, I. Macdonald, S.McGauran, J. J. J. Minchin, N. H.O'Chee, W. G. Parer, W. R.Patterson, K. C. L. Payne, M. A.Reid, M. E. Synon, K. M.Tambling, G. E. J. Tierney, J.Troeth, J. Vanstone, A. E.Watson, J. O. W.31Allison, L. Bartlett, A. J. J.Bishop, M. Bolkus, N.Bourne, V. Brown, B.Carr, K. Cook, P. F. S.Cooney, B. Crossin, P. M.Crowley, R. A. Denman, K. J.Evans, C. V. *Faulkner, J. P.Forshaw, M. G. Gibbs, B.Hogg, J. Lees, M. H.Lundy, K. Margetts, D.Murphy, S. M. Murray, A.Neal, B. J. O'Brien, K. W. K.Quirke, J. A. Ray, R. F.Reynolds, M. Schacht, C. C.Sherry, N. West, S. M.Woodley, J.Ferris, J. Conroy, S.Herron, J. McKiernan, J. P.Hill, R. M. Mackay, S.Kemp, R. Campbell, G.MacGibbon, D. J. Collins, J. M. A.Newman, J. M. Stott Despoja, N.* denotes tellerQuestion so resolved in the affirmative.22:05:005044Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—The second subject matter within which the opposition wishes to insist on its Senate amendment is opposition amendment RN2. I would like to speak to that amendment, which presumably will be the subject of the next debate. Opposition amendment RN2 is to subsection 23B(11) and allows for the revival of native title in relation to previous exclusive possession acts, including freehold grants and residential leases, and purportedly in relation to previous non-exclusive possession acts. That was opposed by the government in the Senate, and it has been rejected by the House of Representatives.We move that the Senate not insist on that amendment for very good reasons. We do not believe, as a matter of common law, that native title is capable of revival once extinguished. It is contrary to the whole notion, general meaning and legal meaning of extinguishment to suggest that something, once extinguished, can be revived. This matter was dealt with very thoroughly by Justice O'Loughlin in the recent Larrakia case. I thought his judgment was lucid and very instructive as to the reasons why at common law native title, once extinguished, cannot possibly be capable of revival. That case is before the High Court, and the High Court will soon confirm the common law on the question. I also refer, as I have before when this matter has been debated, to the views of the architect of native title in the Mabo case—that is, Chief Justice Brennan—where he discussed this matter quite directly in his Wik judgment.This matter was not pertinent itself to the Wik judgment, but it was to Chief Justice Brennan who found in Wik that a pastoral lease does extinguish native title. He set out very clearly why it is his view—as Chief Justice, and, as I said, as the very architect of Mabo—that native title is not capable of revival once extinguished. He set out in that judgment the reasons why any other position at law would be absolutely chaotic and result in extraordinary legal uncertainty—an uncertainty which is unacceptable and which we are sure all the courts will continue to find is the case. The courts would simply not have used the word `extinguishment' in referring to the demise of native title if they meant anything other than that it is in fact extinguished and not capable of revival.I point out that, in the agreement with Senator Harradine, government amendment H6 is listed amongst others on the sheet under the heading `Confirmation' which were moved by the government in the House and agreed to by the House of Representatives. Government amendment H6 will amend section 23G relating to the confirmation of extinguishment by previous non-exclusive possession grants to ensure that the issue of the extended extinguishment by such a grant remains to be determined by the common law.While in relation to non-exclusive possession grants it is the government's view of the common law that inconsistent native title rights—that is, those native title rights inconsistent with the terms of the lease—are indeed extinguished, we are, in agreement with Senator Harradine, prepared to leave that common law matter to the courts but provide that any such rights that are inconsistent are at least suppressed for the duration of the pastoral lease. But certainly in the case of exclusive possession tenures there can be no other interpretation of the common law or any reasonable assessment of what the law can and must be than that, once extinguished, there is no revival. So we do move that the Senate not insist on RN2.22:10:005045Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I start my contribution here by making it clear, particularly to Senator Harradine, that when this bill was before the House of Representatives last Friday the opposition took the process attitude that we took earlier in the piece when this bill was first introduced in the parliament, and that was that, whilst the amendments were disclosed to us very late in the day and we barely had 24 hours to look at them, we reserved our position in respect of the amendments but made it very clear that we had problems not just with the final package but also with the process.That is what I think, quite rightly, the opposition speakers in the House of Representatives railed very much against. That does not mean to say that we do not support some of the amendments that have come through the process—in fact, we do. Some of the amendments that have come through the process are very similar to ones that were adopted by the Senate. This is one area where that is the case. For instance, in this `Confirmation' category, we recognise government amendments H2, H3, H4 and H5 as being extremely close—in fact, with no substantive difference—to amendments embraced by the Senate in April this year.The one problem we do have in this category is in respect of opposition amendment RN2 which was carried in April. We feel that that amendment needs to be pressed. As a consequence, we will be focusing our deliberations in this part of the debate on that amendment. Under this category, we are talking of an area where there has been, as the Deputy Prime Minister (Mr Tim Fischer) predicted, `bucket loads of extinguishment'. The Senate was obviously concerned that those bucket loads were either totally done away with or reduced in number, and that is why amendments were adopted in this place in December and April.Our criticisms all along have been that the government's approach to this extinguishment area, to division 2B, was excessive. The government acceded to the common law, it was deeply flawed in the methodology it used in drawing up the schedule of extinguishing interests and it misread High Court decisions.Another aspect which is of concern to us—and which I am sure will be of concern to this parliament when this legislation has to come back here—is the question of constitutionality on the grounds of just terms compensation. `Just terms' means more than just the amount that people get paid. It means process, it means timely notification and it means fairness in the process. In this category, lawyer after lawyer before parliamentary committees made it clear that this legislation had constitutional concerns and uncertainty on the basis of failing to meet the just terms provision of the constitution.We felt, and we feel, that some of this part of the legislation is based on a legal fiction. In many respects, there is extinguishment or `confirmation', as the government calls it, under false pretences. There has been an overreach of the common law.One area that does remain outstanding is the one I mentioned earlier, and that is the one encompassed in opposition amendment RN2. Opposition amendment RN2, accepted by the Senate earlier this year, left open the possibility of revival of native title upon the expiry of an interest created by a previous exclusive possession act, notwithstanding anything else in the act, including the government's proposed definition of `extinguishment' as being permanent in subsection 23B(11).We feel that this amendment needs to be pressed. The effect of this amendment is to leave it to the common law and the courts, as the appropriate forums, to decide the question of whether native title can revive on land following the expiry of a crown grant. I notice that the government's amendments allow for revival after crown to crown grants, but there is an area that is not covered by the revival provisions proposed by the government and Senator Harradine.We are concerned to take this approach for a number of reasons. One that has been of concern to us but which may not have been of sufficient concern to the government is that we want to avoid loading up the taxpayer with an unnecessary compensation bill. As I said earlier, together with this is a concern that there are constitutional doubts over just terms. We think this provision goes too far. Without the necessary processes, it could fall foul of the just terms provisions of the constitution.We are also concerned that we bring consistency within the act by bringing these provisions into line with the government's own sections 47A and 47B. We move this amendment driven by a concern that there is a loophole that could provide unnecessary compensation expenses to the taxpayer and which could imperil the validity of the legislation. As to the rest of the amendments that have been adopted and proposed here, we see them as substantially being reflective of the amendments passed by the Senate. We do not press any amendments in respect of them.10000CHAIRMANThe CHAIRMAN—The question is that the Committee does not insist upon opposition amendment RN2.XE4BOLKUSSenator Bolkus—Madam Chair, it is quite obvious that the opposition does not have the numbers. We will not be putting this to a vote.Question resolved in the affirmative.10000CHAIRMANThe CHAIRMAN—We will now move to primary production22:17:005046Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—The opposition, as I understand it, is proposing that the Senate does insist on all the amendments with which the House has disagreed; that is, government 26, opposition N19 and Harradine N1, N2 and R9 or their opposition equivalents. I will speak to them from the point of view of saying why the government did not agree to them.The Harradine N1 and N2 amendments and their opposition equivalents relate to proposed section 24GB, which covers acts permitting primary production on pastoral leases, and to proposed section 24GC, which covers primary production activities on pastoral leases. These impose a further requirement to be satisfied that the act or activities in question must have been able to have been done on or before 23 December 1996. We have replaced that with a similar amendment which has as the operative date 31 March 1998. That is the effective date in terms of whether these acts were able to have been done. It ensures absolute consistency across the country, and it is just and equitable in terms of the holders of pastoral lessees in that they will be treated equally by these provisions. It also ensures that this provision has an equivalent operation across the country in all jurisdictions. We think it is a much more appropriate cut-off date for that provision.Harradine R9 goes to proposed section 24GD, which relates to additional grazing and water rights off farm. As you will have seen from the government amendments and the explanatory memorandum, they have been redrafted. As a result of our discussions with Senator Harradine, the new provisions dealing with off-farm activities of this kind, which we think are fair and equitable, are contained in government amendment H19.Senate amendments government 26 and opposition N19, which are also covered in this amendment from the opposition, deal with an amended definition of `mine' in proposed section 25(3). Government amendment 26 made it clear that quarrying in the definition of `mine' does not include the removal of sand, gravel and rocks from the natural surface of the land. Opposition amendment N19 would have limited the application of the amended definition to section 24GE, which grants rights to third parties on pastoral leases. It was unacceptable to the government as it was also intended to apply to section 26A, which allows for the removal of the right to negotiate from exploration prospecting but not quarrying.The opposition amendment would have implied that the removal of other things from the surface of land for road making by local governments would be subject to the full right to negotiate process, which was not an outcome we could possibly accept. Government amendment 26 is replicated in government amendment H20 and will apply both to section 24GE and section 26A. The government reaffirms that we move that the Senate not insist on these opposition amendments as set out in the opposition proposal.22:21:005047Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I say in respect of this section that the opposition does have concerns with all the outcomes emanating from the secret deliberations between the government and Senator Harradine. I will go to the first one in respect of government amendment No. 26 and opposition amendment No. 19. Both amendments were passed in this chamber in April this year. It is worth noting that government H20 this time around is identical in language and effect to government 26, which was agreed to by the Senate in April. We move both of these at this stage and insist on their passage because they do form part of an inextricably linked package.Government amendment 26, or now government amendment H20, excluded from the definition of `mine' the extraction of sand, gravel, rocks and soil from the natural surface of the land. At the time the Senate accepted that provision, it also accepted opposition N19, which amended government H20, to limit the application of the amended definition to pastoral lease land so that the right to negotiate would still apply to the grant of rights to extract sand and gravel et cetera over other classes of land, such as vacant crown land. In rejecting our amendment N19 last time, we believe that the government is leading to a further erosion of the right to negotiate. As a consequence, we press this amendment.The second batch of amendments go to Harradine N1 and opposition N17, which were both accepted by the Senate in April. These relate to the question of the limit on the extent of primary production activities. In respect of these particular provisions, there is a particularly insidious amendment which has a wide-ranging impact. Harradine N1 and opposition N17 were agreed to by the Senate in April. They limited the extent of primary production activities permitted on non-exclusive leases, without the application of the right to negotiate, to those which lawfully could have been done—I stress that: which lawfully could have been done—prior to 23 December 1996, the date of the Wik decision. This effectively limited the rights of pastoralists to those which they actually held as at the Wik date; in other words, the rights that they actually held as at the date of Wik.Now we have government H17. It rejects the amendments that were carried in this chamber last year. I must say that it is quite unfortunate that Senator Harradine is not here at this particular point. I hope someone is listening up in his office. The government has rejected the two amendments that were carried and proposes an alternative amendment, government H17, which will permit any primary production activity which could validly have been done or authorised without attracting the right to negotiate. This means that the right to negotiate will not apply to the full range of primary production activities which a pastoralist could have obtained—not `did' and not `implemented', but `could have'—obtained a right to do; not just those rights which were actually held, but rights which theoretically may have been available to him or her under whatever enabling legislation. This is a position that we took to be, quite clearly, an incursion on the right to negotiate.The other insidious part of this package is that the applicable date has now been changed to 31 March 1998. Forget the benchmark, forget tying the criteria to what was available to people at the date of the Wik decision; we now go some 15 months down the track and allow activities to be conducted if they were able to be accessed by pastoralists as at 31 March 1998. The importance of that date is that it gives full effect to the Land Administration Act 1997 in Western Australia. We have abandoned an important amendment and we have stretched the time limit to March 1998. In doing so, we have allowed a huge raft of activities which were not available to pastoralists under the earlier date and under the earlier amendment.How long can you keep slicing away at the right to negotiate before there is nothing left? This government is amazingly creative in finding ways to erode the right to negotiate and ways to erode the rights of Aboriginal and indigenous people in this legislation. It is not satisfied with a 90 per cent outcome in the first and second debates. It is not satisfied with a deal on the four so-called critical points. Under the cover of secrecy, under the cover of night, they have bowled up another one. This other one has, as I say, major impacts on the right to negotiate as it affects indigenous people in Western Australia. You may not technically be talking about extinguishment here, but you are talking about taking away the right to negotiate.If you want a unworkable system you do two things. Firstly, you spit in the faces of the people you are trying to negotiate with, and that is exactly what you are doing here. This is a spiteful, gratuitous overenthusiastic incursion which is stretching the dates, stretching the capacities. Secondly, you force people to the common law process.The more we go through this legislation the clearer it is that it is becoming unworkable. It is unworkable in that there is absolutely no inducement to indigenous Australians to exercise their rights under such pernicious legislation. How obscene is this? This is what is called grand larceny. You changed the dates, you changed the definition of what is allowable, you changed the capacity of people to erode rights and you bowled it up here. You did not mention it. In the spins that were given to the public last week by both the government and Senator Harradine there was no mention of the change of dates and there was no mention of the broadening of the parameters of what is allowable under primary production activities—no mention at all.I can understand why there was no mention of it. They are ashamed of it. This sort of measure is something that could not stand up to public scrutiny. I am stunned that Senator Harradine has signed his name to a measure like this. This is obscene. This obscenity at its greatest. It is, as I said, grand larceny. How can you justify stretching the date, bringing the date back 15 months, so you can allow the application of legislation passed by the Court government in Western Australia? There is no skin off the government's nose because extinguishment means compensation. There is no skin off the Court government's nose because the federal government has committed the Australian taxpayers across the nation to paying for this compensation. But you would have thought that, in the interests of some sort of sensitivity to the issue, this sort of measure would have been resisted. Richard Court got 75 per cent, but he also got application of the Land Administration Act 1997 as an instrument to extinguish title and extinguish rights.This is the government that said to indigenous Australians of the stolen generation, `You know, it's too bad. But you can't change history.' What they have done here is essentially change history when it suited them. They have done so, I think, to discredit the deal that has been entered into between them and Senator Harradine. I hope Senator Harradine is listening. I hope he has got a good excuse for signing up to this particular part of the package.Progress reported.Adjournment504810000PRESIDENTThe PRESIDENT—Order! It being 10.30 p.m., I propose the question:That the Senate do now adjourn.504822:30:005048Tambling, Sen GrantSenator TAMBLING6E4NTCLP10—This evening I would like to comment on a speech given earlier this evening by the Northern Territory Labor Senator, Senator Trish Crossin, who, unfortunately in her early days in this chamber, has fallen into the bad habit of picking up many of the habits of the Labor Party, particularly on issues where there is a paranoia about people who take a different viewpoint or a government that takes a different viewpoint. It manifests itself almost in a form of hatred against people and is very often a radical sociology.It disturbs me that Senator Crossin would fall into the habit of having a preoccupation with Aboriginal land related issues without giving due balance to the economic issues of the Northern Territory. Senator Crossin deserted her Territory-wide constituency this evening when she attacked the Northern Territory government, particularly on matters of style, and made accusations about such things as retarding of development. I will prove shortly that that is not the case. I am certainly not ashamed of the way in which the Northern Territory government deals with all of its constituency, particularly the Aboriginal constituency.I am very proud that the Country-Liberal Party in the Northern Territory has very obvious, open and transparent platform statements and policies which pick up the issues of major importance to Aboriginal people: their health, their education, their housing and community infrastructure improvements in all of their communities. I would willingly table any of those documents at any particular time. Unlike the Labor Party which, in a period of 13 years from 1983 to 1996, produced no measurable results in those very same areas. Labor's policies which incurred massive expenditure—it threw money at problems—did not result in any record of achievement for the Labor Party in health, in education, in housing or in community infrastructure improvements.I often find the Labor Party both patronising and wrong in its Aboriginal affairs policies. It is obvious that so many of its members believe they have an exclusive right to Aboriginal policy development or, in fact, to Aboriginal people as a particular constituency. But that is not so, and the polls show so.It is also salutary to look at one's own record. I went back this evening through a number of my speeches in this Senate, right back to 1988 which was shortly after my election to the Senate. The first one was on 27 April 1988 when the then Minister for Aboriginal Affairs, Mr Hand, in the Labor government at the time had presented a document called Foundations for the future. That particular debate made me look at the consultative process. The guiding principles that I set forward at that particular time and that have guided me since included the need to properly and continuously consult with Aboriginal people on issues of land, land reform, land acquisition, dispossession and compensation, as well as the need for them to be looked at in such a way without creating a backlash, racial confusion or dissension. I think it is a pity that that often arises.Similarly, when the Labor Party first introduced the native title legislation into this place in 1993, I participated in the debate on 13 December 1993 and I believe that I made an important contribution to that particular debate when I looked very carefully at the issues from retrospective, introspective and prospective points of view. I again pointed out the record of the Northern Territory in so much of this area. At the same time, I looked at the conflicts between cultures and those prevailing on the system, and the tensions between traditional and modern aspects of Aboriginal society and the community in which we live. It is important that we revisit and look at the demography and heritage issues of all of our communities.Following the election of the Howard government in 1996, the legislation came before us again in this place in the form of the Native Title Amendment Bill 1996 . When I spoke in the debate on 25 November 1997, I again looked at the balance of interests that needed to be struck and spoke about the very important issues of introducing certainty and predictability that we see going on in today's debate with regard to native title. I made this point on that occasion:Ignorance, emotion and bias are no substitute for dammed hard work and attention to the detail in the legislation—Unfortunately, I do not believe that is being reflected in the way that the Labor Party is tonight debating that particular issue. I also turn to the point that Senator Crossin raised in her attack on the Northern Territory government's history. Yes, the Country-Liberal Party has been in continuous government in the Northern Territory since self-government in 1978 and has been the major party in the Northern Territory Legislative Assembly since 1974. It is important to look at the record of achievement in that 20-odd year period. In 1978, the resident population was 112,000; today, it is 187,000. The number of employed people in 1978 was 43,100; today it is 88,600. Average weekly earnings in 1978 was $241; today it is $671. Building completions in 1978 were worth $164 million; this year, $501 million. Mining turnover in 1977-78 was $125 million; this year, $1.272 billion. Tourist accommodation takings were $7 million in 1978; and, in 1997, they were $147 million. The fishing catch was $10 million in 1978, and $100 million in 1995-96.There are many other industries such as pearling, horticulture and industries associated with defence developments up north that we also need to recognise. So it is untrue for Senator Crossin to try to imply that the Northern Territory had not developed. Along with those sorts of economic figures there has also been a tremendous development of the social fabric of the Northern Territory.Where are we today? It is important that we should be trying to build and bring these issues together. I would like to quickly dwell on three things that I think are important. Today, in the federal court, Mr Justice Olney brought down a particular decision with regard to the Croker Island sea case, in effect setting the ambit for offshore Aboriginal rights. The draft determination indicates that native title rights to the sea and the sea bed include a right to access the claimed area, including for cultural and spiritual reasons, and for fishing and hunting, for personal, domestic or non-commercial communal needs, and that native title rights and interests within claimed area do not confer exclusive possession and must yield to all rights and interests that exist pursuant to valid laws of the Commonwealth and the Northern Territory. This is a precedent breaking decision that has been brought in.8O6O'BRIENSenator O'Brien—I rise on a point of order, Madam President. I am reluctant to interrupt, but it seems to me that Senator Tambling is in breach of standing order 53(4) in debating a matter on the adjournment which is relevant to the question that was being debated immediately prior to the adjournment being moved.10000PRESIDENTThe PRESIDENT—He may not debate the bill that is before us at the present time. There are issues within that that he may refer to, but not the bill itself. He certainly should not be dealing with the bill on the Notice Paper .6E4Tambling, Sen GrantSenator TAMBLING—Madam President, I certainly reflected on the bill, but not in a way that I believe impinges on anything. And there is no reason why I should not refer to the determination on native title that was handed down today in the federal court by Mr Justice Olney. I will read from that proposed determination:The Court proposes to make a determination of native title in the following terms:1. Communal native title exists in relation to the sea and sea-bed within the claimed area.2. The native title is held by the Aboriginal peoples who are yuwurrumu members of the Mandilarri-Ildugij, the Mangulara, the Murran, the Gadura-Minaga and the Ngaynjaharr clans (the common law holders).3. The native title rights and interests do not confer possession, occupation, use and enjoyment of the sea and sea-bed within the claimed area to the exclusion of all others.4. The native title rights and interests which the Court considers to be of importance are the rights of the common law holders, in accordance with and subject to their traditional laws and customs to have free access to the sea and sea-bed within the claimed area for all or any of the following purposes:(a) to travel through or within the claimed area;(b) to fish and hunt for the purpose of satisfying their personal, domestic or non-commercial communal needs including the purpose of observing traditional, cultural, ritual and spiritual laws and customs;(c) to visit and protect places which are of cultural and spiritual importance;(d) to safeguard their cultural and spiritual knowledge.5. The native title rights and interests of the common law holders in relation to the sea and sea-bed within the claimed area are affected by, and to the extent of any inconsistency must yield to, all rights and interests in relation to the sea and sea-bed within the claimed area which exist pursuant to valid laws of the Commonwealth of Australia and of the Northern Territory of Australia including the rights and interests of the lessee of Crown Term Lease No. 1034.It is a pity we did not have that important determination before all of this native title debate began. It would have given us a much clearer vision, and certainly a clearer objective in dealing with many of the issues. I refer also of course to the important reconciliation today between the Northern Territory Chief Minister and the Chairman of the Northern Land Council, Mr Gallarrwuy Yunupingu, and to motives of other people, such as the Director of the Central Land Council, asking me to broker a particular meeting with leaders of the Northern Territory government. (Time expired)505122:41:005051Lundy, Sen KateSenator LUNDY7G6ACTALP00—The discovery of information technology by Liberal government leaders never fails to bring a wry smile to my lips. Last year we saw a besotted Howard genuflect before the blue glow of Windows 95 screen savers—10000PRESIDENTThe PRESIDENT—Order! Senator, it is not appropriate to refer—7G6Lundy, Sen KateSenator LUNDY—I am sorry—Mr Howard—as Australia hosted a little visit from the world's richest man. The doors of the federal cabinet opened wide, and 15 minutes after Bill Gates trundled in, the credibility of the federal government trundled out. It took the Prime Minister over 18 months to twig that he ought to pay IT some attention. After all, IT represented the largest growth sector in the world.Unfortunately, the lurching, lazy policies of John Howard and his Cabinet colleagues, Mr Fahey, Mr Moore and Senator Alston, have implemented in place of the interests of Australian citizens and businesses a very self reflecting and self indulgent lack of due diligence and detail.Examples of their negligence traverse technological convergence, communications infrastructure, social equity and industry development. This last point is exemplified by the federal government's IT outsourcing program, which was announced in last year's budget. Implemented with no regard to the inherent strengths contained within the public and private sectors, this program exposed the inexperience of the government in leveraging the power and strategic importance that Commonwealth procurement policies provide. The shallow argument that cost savings alone provided the justification for the exercise was blown apart when the cabinet submission on which the program was based was leaked.This program was implemented with no regard for the seed-bed for growth and innovation that Commonwealth contracts provided to our growing indigenous IT sector. The strategic importance of the selective sourcing of IT to Commonwealth agencies was best summed up by Geoffrey Ross, the Managing Director of SNS, an indigenous IT company specialising in security solutions, when he said at the Senate inquiry into IT outsourcing:Government procurement gives you a level of credibility which is obviously important . . . In every country that we are in, especially in the Asia-Pacific area, we will always refer to our defence contracts and provide references.And:It is not only a matter of credibility in the Australian market place. One of the first questions you are asked overseas is `Does the government use your products?'The fact that the Commonwealth contracts are the biggest in this country serves to reinforce their strategic importance in the corporate food chain. From a local perspective, the fact that the federal government's needs were serviced primarily by the businesses located in the Australian capital region underpinned the growth of our local IT sector. However, the seriousness of the Commonwealth's mismanagement of IT has completely bypassed the ACT Chief Minister. Despite IT and advanced technology being identified years ago as a regional strength, the ACT government has failed to act to protect the interests of the region. Instead of using any political leverage held by the local Liberals against their federal counterparts, the Chief Minister has sought to distance herself.As industry anger and frustration grew, the federal government was forced to respond by inserting an industry development clause into the IT tenders. The credit for this concession, albeit an imperfect one, goes to the businesses that bravely spoke out despite the risk of `punishment' that this vindictive government has shown it is willing to inflict upon such contractors. When stunts like banner headlines about 900 make believe jobs and the use of phrases like `the next silicon valley' in every speech were no longer enough to silence the growing dissatisfaction, the ACT government was forced to act. My wry smile returned when, in the recent ACT budget, the local Liberal government leader used IT as Brasso to polish up her tarnished credibility. True to form, her tricky, as opposed to clever, plan involves providing a degree of sustenance to the local IT sector through ACT government IT procurement. If there is one thing that Kate Carnell does well, it is finding a way to harness her political chariot to success.Where will the $80 million worth of IT success be spent? Why is it tricky? Because the businesses that will share in the success will be decided by a board appointed by Kate Carnell. Candeliver was a bright idea that had the capacity to capture a proportion of the outsourced work spewing forth from federal agencies squeezed under massive budget cuts. It was set up to harness and exploit the ACT government's ability to provide the necessary guarantees for local businesses to cope with the risk that a large Commonwealth contract carries.So far so good. Where the concept gets sticky is the way in which the participants are selected by Candeliver and how their role within the scope of a given tender is allotted. Even if Candeliver can demonstrate probity in their processes and public accountability regime, which I hope indeed they can, I am gravely concerned that Candeliver will be perceived as the horse to which the Chief Minister will harness her chariot. When will our interminable Chief Minister realise that there is a time when politicising business initiatives is not necessarily in the best interests of those businesses? The Chief Minister's public devotion to all things IT is at best a belated, but nonetheless welcome, recognition of where our future as a region lies and at worst a shabby, cynical political reaction to an angry, disenfranchised local industry sector.I look with interest at recent statistics proclaiming marvellous growth in our private IT sector and wonder to what degree the quantitative growth within the multinationals, the legals and the consultative firms finds a corresponding slump in qualitative innovation and local business expansion, not to mention the loss of experience and knowledge contained within the minds of those public servants who have laboured for many years in preparing what have become the examples of world's best practice in the IT sector.The ACT government would be well advised to take a reality check. The state of our sector bears a strong relationship to the IT procurement and outsourcing policies of the federal Liberal government and a local bandaid will not suffice when federal brain surgery is required. There is enough expertise here in Canberra for the right advice to emerge. The question is, are the respective governments listening to the right people? Perhaps the volume needs to be turned up.505222:48:005052Bartlett, Sen AndrewSenator BARTLETTDT6QLDAD00—I rise this evening to speak once again on the issue of immigration policy and multicultural policy, which is an important issue and one that has received a lot of attention in recent times in Australia. I rise specifically in response to a couple of challenges that were made in recent times. One came from Senator Vanstone in this place just last Friday in response to a question I asked her in question time, where she said that some on the government side of the chamber would like a clear and unequivocal statement from the Democrats on our immigration policy and what net zero immigration means. The Sydney Morning Herald editorial from last Saturday mentioned the inability of the One Nation Party to pronounce real facts in relation to immigration issues. It talked about immigration policy in general and said that what is needed now in this debate is an honest account by the Democrats of their policy.In response to those challenges, I wish to provide a clear, unequivocal and honest account of the Democrats' policy on this issue. It is no great secret, I hasten to add; it is something that has been clearly demonstrated on our website, on all our policy papers over many years and in any number of speeches in this chamber. Given these requests or challenges, depending on which way you wish to look at it, I felt it appropriate to outline our policy for the benefit of the many people who are interested in this matter here this evening.The core objective of the Democrats' immigration policy is to implement and manage a non-discriminatory immigration program which recognises the need for Australia's population to be at an environmentally sustainable level. That has a number of princi ples hanging off it, including the need for Australian immigration levels to allow the population of Australia to be stabilised at a level which is consistent with an indefinitely sustainable environment. Until a sustainable population is achieved, the level of immigration is to be continued, with the annual number of immigrants set so as not to exceed the number of permanent departures of people from Australia during the previous year, which is my understanding of the term `zero net migration'.As part of that policy, it is also crucial to emphasise that the Democrats also believe that refugees should be given the highest priority in immigration; that the processing of applications and the criteria used to select new migrants should be non-discriminatory; that high quality post-arrival educational and orientation services must be provided; and that recognition of qualifications, linked with the right of reciprocity for Australian qualifications, should also be provided. Apart from the single component of commonality of a zero net migration program, the definition of which I just gave, I am not aware of any other particular links between that policy and the policy of One Nation, despite that party's apparent desire to cloak its discriminatory policies with some respectability by linking them to the Democrats' policy.The Democrats' policy does not include requiring people to wait up to two years for assistance from the social security department if they are in need purely on the grounds that they are new migrants, as exists under the One Nation policy. Unfortunately, it also exists in legislation in this country at the moment. The Democrats' policy is not only enabling those from rich countries to come here, as applies under the One Nation policy, it is not discriminatory against those who come from countries without an adequate social safety net, as applies under the One Nation policy.It does not require refugees to be sent back where they came from as soon as humanly possible, as is applied under the One Nation policy. It does not specifically stop students from China from being able to provide much needed income for Australia's education sector, as is contained in the One Nation policy. It does not perpetuate the myth that migrants cost Australians jobs or, as One Nation leader David Oldfield repeatedly says, that Australia is full of and continues to be drenched with useless migrants. The Democrats recognise that all migrants—skilled or unskilled, old or young, well or not so well—provide a beneficial addition to Australian society and to our community overall.As I have said before and have mentioned just previously, the Democrats give great importance to our obligations to assist refugees. We give priority to refugees and family reunion applicants under what we believe should be the appropriate immigration policy of this country. We have consistently fought for the principle that asylum seekers should be given treatment equal to that given to any other person before Australian courts. We have insisted that people applying for refugee status should be advised of their legal rights, including their right to legal advice and representation, and should be provided with that advice and interpreter services. When one looks at the situation that many refugees come from, the circumstances and the experiences that they have had to endure, I think most of us would agree that is the least that we could do.The Democrats are also very strong supporters of multiculturalism. We recognise that Australia is a multicultural society and that all of us have a part to play in building a strong, safe, harmonious and prosperous Australia. To suggest, as the One Nation Party has, that multiculturalism should be abolished and that new migrants should not be given any assistance is not only discriminatory, unfair, unjust and any number of other words; it is also stupid, to put it bluntly, for the rest of us here in Australia. It is economically ridiculous and it contributes to a breakdown of the social fabric, rather than encouraging and building a more harmonious and—just as importantly for those of us who like to talk in economic-speak—a more prosperous Australia.The Democrats have consistently and strongly supported the concept of multiculturalism and have taken action on numerous occasions to make it a strong reality. We will continue to do so because we recognise that people from overseas, whether they have arrived here last week or last century, and their children and grandchildren et cetera have made a significant contribution to Australian society. We believe that a cohesive multicultural society must be maintained and developed and that that can only happen if ethnic people of a non-English speaking background as well as of an English speaking background achieve equality in access to the services and the opportunities open to all Australians and have the opportunity to contribute fully to our community.I will quote the words of our Governor-General, Sir William Deane, who probably says most things better than I do. He said recently that Australians could never overemphasise the importance of immigration and multiculturalism to the country. I think that is a very timely pronouncement. He said all Australian citizens were entitled to expect and demand mutual tolerance, respect and acceptance.One Nation, as we all know, has called for multiculturalism to be abolished; the so-called `savings' from that—which I think is a false saving, as with many of the so-called `savings' in its policies—would go to a task force aimed at rounding up and deporting illegal immigrants. One thing I would acknowledge about the current government's activities is that it has done a fair bit in being seen to be working hard at ensuring that illegal migrants are not able to find it easy to remain in this country and that they are deported as soon as possible, whilst ensuring that those people do have an opportunity to pursue their rights under the legal system.As the Governor-General said, Australia's strength is `the unity' of our people. Apart from the Aboriginal and Torres Strait Islander people, we Australians are all immigrants or, in the perspective of modern history, descended from immigrants. Our real strength is that, while we come immediately or more distantly from all the regions and races of the world, we are united as one people. I hope that all of us here recognise that strength; certainly, the Democrats do. In making the Democrats' policy on immigration and multicultural issues clear, I call on all parties in the Australian political system to rise up to defend this overall strength of Australia: our strength as a multicultural society and the strength that we have derived over many years and continue to derive from the role that migrants have played and continue to play in Australian society.22:58:005054Senate adjourned at 10.58 p.m.Documents50545054The following documents were tabled by the Clerk:Aged Care Act—Allocation Amendment Principles (No. 1) 1998.Airports Act—Regulations—Statutory Rules 1998 Nos 207-209.Airports (Transitional) Act—Regulations—Statutory Rules 1998 No. 206.Australian Meat and Live-stock Industry Act—Regulations—Statutory Rules 1998 No. 202.Australian Prudential Regulation Authority Act—Regulations—Statutory Rules 1998 No. 200.Banking Act—Regulations—Statutory Rules 1998 No. 198.Banks (Shareholdings) Act—Regulations—Statutory Rules 1998 No. 213.Cocos (Keeling) Islands Act—Ordinance—No. 3 of 1998 (Applied Laws (Implementation) (Amendment) Ordinance 1998).Currency Act—Currency Determination No. 5 of 1998.Customs Act—Regulations—Statutory Rules 1998 Nos 211 and 212.Dairy Produce Levy (No. 1) Act—Regulations—Statutory Rules 1998 No. 216.Financial Sector Reform (Amendments and Transitional Provisions) Act—Regulations—Statutory Rules 1998 No. 199.Fishing Levy Act and Fisheries Management Act—Regulations—Statutory Rules 1998 No. 205.Health Insurance Act—Regulations—Statutory Rules 1998 Nos 203 and 204.Lands Acquisition Act—Statements describing property acquired by agreement under sections 40 and 125 of the Act for specified public purposes.Laying Chicken Levy Act—Regulations—Statutory Rules 1998 No. 215. Life Insurance Act—Regulations—Statutory Rules 1998 No. 191.Migration Act—Regulations—Statutory Rules 1998 Nos 210 and 214.National Health Act—Determination— Nos 97/98 ACC 20 and 97/98 ACC 21. Under Schedule 1—HIG4/1998.Public Service Act—Senior Executive Service Retirement on Benefit Determinations 1998/53 and 1998/54.Student Assistance Act—Determination No. 1998/2.Superannuation (Productivity Benefit) Act—Determination—Statutory Rules 1998 No. 201.Telecommunications Act—Regulations—Statutory Rules 1998 No. 180.Answers to Questions on Notice5056The following answers to questions were circulated:5056(Question No. 1099)10995056Allison, Sen LynSenator Allison1M6VICAD00 asked the Minister representing the Minister for Employment, Education, Training and Youth Affairs—with reference to the Australian Education Union document, `How Kemp Always Gets His School Sums Wrong'—upon notice, on 12 March 1998:(1) In real terms, what proportion of the $127 million increase in funding for schools in 1998, referred to by the Minister in Hansard on 5 March, 1998, and on page 6 of the above document, is due to: (a) indexation; (b) supplementation; (c) funding of increased enrolments; and (d) new programme expenditure in government schools.(2) With reference to the claim of the Minister, referred to on page 1 of the document, that Commonwealth expenditure on education will increase by $2.3 billion between 1997 and 2000: (a) can details be provided of the breakdown of the figures which were used to arrive at this figure; and (b) is there any basis to the claim that some of these figures were included three or four times.(3) With reference to the fact that, based on figures supplied by the department, the Minister has claimed that Commonwealth funding for government schools will rise by 17.9 per cent and funding for non-government schools will rise by 14.9 percent between 1996 and 2000:(a) what proportion of this increase is due to an increase in the Financial Assistance Grants (FAGs) funding; (b) why has FAGs funding been included in these calculations on this occasion when it has not been included in this type of calculation in the past; and (c) were these calculations based on advice from the State Governments; if not, on what advice were they based.(4) Can the following claim on page 3 of the document be confirmed: that, in real terms, between 1996 and 2000, funding for government students will fall by around 5.5 per cent while funding for each non-government student will rise by over 2 per cent.5056Ellison, Sen ChrisSenator Ellison9X5WALPSchools, Vocational Education and Training10—The Minister for Employment, Education, Training and Youth Affairs has provided the following answer to the honourable senator's question:(1) In real terms, the increases in funding from 1996 to 1998, including additional funding announced in the 1998-99 Budget, can be broken down into the following:%(a) & (b) Indexation and Supplementation:87(c) Funding of increased enrolments:2(d) New money12(Please note that figures do not add due to rounding)(2) (a) The figure of $2.3 billion, originally calculated in 1996, has been revised to $1.9 billion based on updated estimates of attributed Financial Assistance Grants figures derived from information provided by the Commonwealth Grants Commission. The following is a breakdown of the figures used to arrive at the $1.9 billion increase in Commonwealth expenditure on education between 1997 and 2000.Direct Funding FAGs Total Increase over 1996$'000s$'000s$'000s19961,500,5712,986,7004,487,27119971,624,7193,078,0004,702,719215,44819981,712,3313,179,4004,891,731404,46019991,730,4743,365,0005,095,474608,20320001,683,7973,488,1005,171,897684,626Total1,912,737(b) No.(3) (a) The updated increase in per capita funding from 1996 to 1998 is 13.5%. The proportion of this increase due to Financial Assistance Grants (FAGs) funding is 74%.(b) The inclusion of both Commonwealth-sourced FAGs directed to schooling and Specific Purpose funding provides a more accurate assessment of the total Commonwealth contribution to school education from all sources. The Australian Education Union's 1995 publication Creating an Education Nation (p. 25) argued that FAGs spent on schooling should be recognised as a Commonwealth contribution in any comprehensive funding analysis.(c) The level of FAGs applied to schools was calculated through analysis of historical data provided by the Commonwealth Grants Commission.(4) The calculations included in the claim on page 3 of the AEU document cannot be confirmed as they do not appear to relate to DEETYA-sourced data.5057(Question No. 1182)11825057Allison, Sen LynSenator Allison1M6VICAD00 asked the Minister representing the Minister for Employment, Education, Training and Youth Affairs, upon notice, on 7th May 1998:(1) Can the figures quoted in the Age of 16 April 1998 which show that the proportion of undergraduates enrolling in teacher training has dropped from 23 per cent to less than 13 per cent over the past 15 years, be confirmed.(2) Can a breakdown be provided, by gender, of teacher training enrolments over this period.(3) Has the department undertaken any studies to determine why enrolments in teacher training has fallen to such an extent.(4) Has the department undertaken any studies to determine what impact current low enrolments in teacher training will have on the supply of teachers in the future.5057Ellison, Sen ChrisSenator Ellison9X5WALPSchools, Vocational Education and Training10—The Minister for Employment, Education, Training and Youth Affairs has provided the following answer to the honourable senator's question:(1) The figures for the education field of study provided in the Age article of 16 April 1998 do not refer to the proportion of undergraduates who have enrolled in teacher training over the last 15 years as the article suggests. The figures used in the article come from my Department's publication Higher Education Students Time Series Tables 1998 and refer to higher education commencements by field of study which include not only undergraduate but also other commencing students. Moreover, the publication refers to all students in the education field of study which includes not only teacher training commencing students but other non teacher training commencing students in the education field of study.(2) A breakdown of teacher training enrolments by gender over the period referred to in the Age article (1983 to 1987) is not available. Figures are available, however, for the period 1989 to 1997. Over this period teacher training commencements have fallen by 8.2 per cent from 7,851 to 7,208 for males, and increased by 0.3 per cent from 21,312 to 21,374 for females. The share of teacher training commencement in all commencements has fallen from 16.1 per cent to 10.7 per cent, reflecting stronger growth in other fields of study.(3) I refer the Senator to the reply to part (4) of her question.(4) The Ministerial Council on Education, Employment, Training and Youth Affairs (MCEETYA) has agreed to monitor teacher supply and demand and to receive an annual report for this purpose. The Department is assisting a working group established by the Council of Education Systems Chief Executive Officers with the collation of the first of these national reports. The report, which will canvass various aspects of the supply and demand for primary and secondary school teachers including trends in teacher education enrolments, is scheduled to be completed for MCEETYA in July 1998.The Department's report `Australia's Workforce 2005 : Jobs in the Future' provided projections of the skills balances of a large number of occupations. It did not find strong evidence in support of an under-supply of teachers to the year 2005.5058(Question No. 1196)11965058Brown, Sen BobSenator BrownQD4TASAG00 asked the Minister representing the Minister for Health and Family Services, upon notice, on 21 May 1998:(1) Could a standard of 50 parts per million of tetra-hydrocannabinol (THC) be adopted as the standard for hemp seed oil production in Australia at the 19 May 1998 meeting of the National Drugs and Poisons Scheduling Committee, since that standard is the legal trading limit in Switzerland and is accepted by scientific bodies elsewhere in Europe, and is a standard backed by the International Hemp Association.(2) Is the Minister aware that Victoria's expected proposal for 10 parts per million THC is unrealistic for commercial production, difficult to achieve by this industry and not easily or accurately determined analytically.(3) Is the Minister aware that 50 parts per million is required for Tasmania's expanding hemp industry to have legal access to world markets in non-medical hemp products, and for Tasmania to become a manufacturer of non-medical hemp products.(4) Is the Minister aware that the poorest State in the nation, Tasmania, is being disadvantaged by present laws because it is the only State that has produced hemp seed oil and has already achieved the internationally-acceptable THC level of 50 parts per mlllion but the Tasmanian oil product is deemed to be illegal despite not causing any psycho-active effects whatsoever.5058Herron, Sen JohnSenator HerronVW4QLDLPAboriginal and Torres Strait Islander Affairs10—The Minister for Health and Family Services has provided the following answer to the honourable senator's question:(1) I can confirm the National Drugs and Poisons Schedule Committee (NDPSC) at its meeting from 19 to 21 May 1998 did consider a proposal which would allow the trade of hemp seed oil containing 50 parts per million or less of tetrahydrocannabinol (THC).It should be noted the NDPSC is not a statutory Committee established under Commonwealth legislation but a Committee comprising representa tives of each State and Territory government, the Commonwealth, industry, consumers, regulatory bodies and other expert members constituted under the auspices of the Australian Health Ministers' Advisory Council (AHMAC). The decisions of the Committee are included in the Standard for the Uniform Scheduling of Drugs and Poisons (SUSDP) and incorporated into the relevant State and Territory legislation.The proposal that hemp seed oil containing 50 parts per million or less of THC, and when in preparations for other than internal use, be exempt Eom Schedule 9 of the SUSDP was agreed by the NDPSC at the meeting and therefore permitted for trade within Australia.(2-4) I am aware of concerns that a level of 10 parts per million of THC may be difficult to achieve by industry, and the NDPSC decision of 50 parts per million is in keeping with such concerns and should therefore be welcomed by industry and the Tasmanian Government.5058(Question No. 1201)12015058Colston, Sen MalcolmSenator ColstonPF4QLDIND00 asked the Minister for Communications, the Information Economy and the Arts the following, upon notice, on 29 May 1998:(1) Has the Minister read the submissions from AAPT and other Telstra competitors presented to the recent public hearings of the Environment, Recreation, Communications and the Arts Legislation Committee concerning the Telstra (Transition to Full Private Ownership) Bill 1998.(2) In particular, has the Minister seen those parts of the AAPT submission, endorsed by other Telstra competitors dealing with: (a) interim stop orders, to facilitate the Australian Competition and Consumer Commission intervention to stop suspected breaches of competition; (b) private right of action, to enable a party affected by anti-competitive conduct to seek interim relief in the courts; (c) mandatory publication of Telstra's tariffs; (d) publication of Telstra's access agreements; (e) ringfencing of Telstra; (f) retention of the ministerial power to direct Telstra; (g) disclosure of costs information; (h) duty to negotiate in good faith; and (i) customer service guarantees.(3) In view of the significance of these and other issues adversely impacting on support for the Telstra sale, will the Minister respond formally to those and similar submissions which were made to the committee before the Telstra legislation is presented for debate.5058Alston, Sen RichardSenator AlstonLD4VICLPCommunications, the Information Economy and the Arts10—The answer to the honourable senator's question is as follows:(1) Yes.(2) I have noted these issues raised by AAPT and others in their submissions to the Senate Committee.(3) The Government has considered the Senate Committee report and announced its intention to introduce amendments to the Telstra (Transition to Full Private Ownership) Bill when the Bill is debated in the Senate. The amendments will ensure that consumers continue to be the major beneficiaries from telecommunications reform by strengthening the position of newer and smaller players in the telecommunications market with consumers enjoying significant price reductions as a result of competition.The Government will introduce amendments to: promote greater information disclosure to consumers of the terms and conditions of services, including consumer rights under the customer service guarantee; give persons a private right of action to seek injunctions for breach of the competition rule; give the ACCC the power to require a carrier or carriage service provider to disclose or publish information that the carrier or carriage service provider keeps (subject to appropriate legislative criteria including consideration of the impact of disclosure on the legitimate commercial interests of the person whose information would be disclosed); expand the ACCC's existing power to give procedural directions to a carrier or carriage service provider about conduct in access negotiations by enabling it to give such a direction where it is requested to do so and if it is of the opinion it would facilitate negotiations, rather than the power being dependent on a party to negotiations notifying that a dispute exists; and provide that access providers may use information supplied to them under the telecommunications access regime only for the purposes for which it was supplied; enable the ACCC to attend and mediate at access negotiations, when requested by all parties to the mediation and at its discretion, without being prevented from undertaking any future necessary arbitration; and enable the ACCC to make a binding code about how carriers comply with obligations (which relates to the provision of access to network information and obligations to consult about reconfiguration plans).The Government considers that this package of competition and consumer amendments appropriately addresses the issues and concerns raised.