1998-07-073817SENATE506101998-07-07The PRESIDENT(Senator the Hon. Margaret Reid) took the chair at 9.30 a.m., and read prayers.Bills5061r4555061Consideration resumed from 6 July 1998.10000CHAIRMANThe CHAIRMAN—The committee is considering the message from the House of Representatives and the motion moved by the Special Minister of State, Senator Minchin, that the committee does not insist upon amendments disagreed to by the House and agrees to amendments made by the House. When the Senate adjourned, the question had been divided in respect of government amendment 26, opposition amendment N19, Senator Harradine's amendment N1 and opposition amendment N17, Senator Harradine's amendment N2 and opposition amendment N18, and Senator Harradine's amendment R9, which concern primary production. The question is that the committee does not insist upon amendments government 26, opposition N19, Harradine N1, opposition N17, Harradine N2, opposition N18 and Harradine R9.09:32:005061Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—The committee had just about wrapped up its discussion on primary production. I want to respond to the opposition's attack on the proposal in relation to the date on which certain acts could lawfully be done. In relation to primary production, the opposition amendment is to make that date 23 December 1996, the day of the Wik decision. The government's proposal is that it be 31 March 1998.This is a very important issue. It is in the context of the opposition, and indeed the National Indigenous Working Group and other Aboriginal leaders, saying that the Wik decision was all about cooperation, sharing and not wanting to interfere with farmers engaging in primary production and being able to diversify into legitimate primary production activities. There are concerns about the extent to which mining and changes to full-scale agriculture occur, and we have allowed for that. But this is about diversification within the meaning of primary production, short of the sort of activities which would necessitate compulsory acquisition.What is at stake here is equal treatment of farmers across Australia, because the effect of the opposition amendment is to single out, for adverse discrimination, farmers in Western Australia. They know that; they know that the effect of their amendment is to discriminate against farmers of Western Australia as against farmers in every other jurisdiction in this country. I do not know how any Western Australian senator representing the Labor Party in particular could possibly support such a proposition—that, simply by a quirk of fate and the nature of the state legislation prevailing at the time of the quite unexpected and, as I am reminded, 4:3 decision by the High Court in Wik on 23 December 1996, farmers in every other part of Australia would be able legitimately to be granted additional primary production rights, but not those in Western Australia.The constitution has various provisions which prevent the Commonwealth parliament discriminating against people in any particular state. This is what the effect of this proposition would be—to discriminate adversely against only the farmers of Western Australia, compared with farmers in every other state. That is unconscionable. The ALP is saying it accepts that it will allow the appropriate diversification in five of the six states, but not in Western Australia. I think the opposition has a responsibility to say why it wishes to single out the farmers of Western Australia for this discriminatory treatment, which would be the consequence of the passage of this amendment.We have put in the date of 31 March 1998 to ensure that farmers right across Australia in every jurisdiction are treated equally, which is the ultimate responsibility of this parliament. 09:35:005062Brown, Sen BobSenator BROWNQD4TASAG00—I ask the minister whether he would enumerate the potential farming activities that will be allowed on leasehold lands without negotiation with the indigenous people under this Land Administration Act 1997 in Western Australia, so that the committee knows exactly what rights are being taken from the indigenous people of that state.09:36:005062Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—In the 89 hours that we have debated this bill, we have talked about this question of allowable primary production activity. On page 48 of the bill, section 24GA sets out what primary production activity can be allowed if the relevant state legislation enables a government to issue to holders of pastoral leases these permits for these sorts of activities. The activities include cultivating land, maintaining, breeding or agisting animals, taking or catching fish or shellfish, forest operations—which has a particular definition in section 253—horticultural activities, aquacultural activities, leaving fallow or destocking any land in connection with the doing of anything that is a primary production activity. It specifically says that mining is excluded.If there is a move from those sorts of activities to more intensive agriculture, which clearly would necessitate the acquisition of the native title, you have got to go through a completely different process. As we have said before, a non-discriminatory compulsory acquisition process has to be followed, which involves the compulsory acquisition of all rights and interests in the land on just terms and through due process. If we are talking about what non-extinguishing, additional primary production activities can be authorised by state governments, then they are limited to those activities set out in section 24GA.For years and years, state governments of both complexions have been encouraging the farmers of Australia to diversify to ensure we maintain economic activity in rural Australia, the decline of which, of course—as you well know—is one of the reasons for the rush to One Nation in certain parts of Australia because of the economic downturn.XE4BOLKUSSenator Bolkus—Oh!JX4Minchin, Sen NickSenator MINCHIN—Honestly, this is a serious point. If you insist on passing amendments which simply further restrict the capacity of Australian farmers to diversify their activities to maintain economic activity in rural and regional Australia, you are simply playing into the hands of those whom we all oppose.This is a quite legitimate and proper thing. This has been agreed by the opposition as being appropriate, by their amendment, for the five states of Australia where there is legislation in place at state level allowing these sorts of activities on pastoral leases. But, by a quirk of fate, what is proposed is that we single out Western Australia by saying that this will not be allowed for Western Australian farmers. That is unconscionable.09:38:005062Cooney, Sen BarneySenator COONEYSF4VICALP00—Special Minister of State, I can see your proposition: you are saying that things ought to be even for farmers around Australia. But, first of all, I want to ask: was this date extension discussed with the indigenous people? Secondly, is this another sign of what we might call `legislative creep' in that, as soon as a problem arises—say, with farming, mining or any other activity on the land—the rights that indigenous people may have will be further eroded? What I mean by `legislative creep' is this: when we first started tapping phones, we tapped phones for ASIO and that was all. Now we have got to the point where legislation has been so extended that, to accommodate all the requirements of policing authorities around Australia, we keep changing the act.We have a problem in Western Australia, as you have explained so well, so we then change the act in a way which may affect Aboriginal rights. The message coming through from that is that, if there is a problem, the people who have got to give way are the Aboriginals, not the farmers, the miners or the people who are building the city. This creates a culture around this act so that, if any problem arises, the act will be changed.What guarantee would the Aboriginal people have that this legislation, if it were put through—as it looks like being put through—would be legislation that they could live by and that, if a problem arises—as has arisen here in the case of Western Australia, as you have explained—we in this place will not further take away their rights? That is the problem, amongst others of course, with this state in that a problem has arisen, so let us supposedly solve that problem by further eroding the possible, probable or even the vested rights of Aboriginals.09:41:005063Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I appreciate Senator Cooney's contribution. Can I remind him that the Wik decision itself—a marginal decision, four to three—decided that, while it is possible that native title may have survived on pastoral leases, the statutory rights of the pastoralist always prevail. Indeed, at common law there is no restriction on state governments issuing additional statutory rights of whatever kind.The legislative problem we ran into was that the Native Tile Act never contemplated, or was designed for, the possibility of native title surviving on pastoral leases. As set out in the advice from the Attorney-General's Department, the Native Title Act almost certainly has the effect at law of very severely restricting, if not preventing, legitimate primary production activity in accordance with existing leases because, if you cannot do the thing under the Native Title Act, you cannot do it at all. It did not contemplate these sorts of activities.Once we decided we were going to contemplate and allow for native title on pastoral leases, the decision had to be made as to what extent the Native Title Act was going to be amended to allow legitimate primary production activity, given the act's unintended consequence of preventing it. We said from the outset that we believed that pastoral lessees should be able to engage in primary production activity according to the general definition in the Income Tax Act. That was said from the very outset. That has been modified or clarified by way of the definition set out in 24GA.Our original position was that there was no such time restriction or some arbitrary date at which state legislation had to allow or not allow those sorts of activities. We were saying that a state government would be able to authorise pastoral lessees to engage in diversified primary production activity as long as it fell within this definition of primary production activity. We did not mention any dates. If a state government did not have the legislative authority to allow diversification according to that definition, we did not restrict it in its capacity, through its own parliamentary procedures, to seek to have the legislation to enable it to allow the diversification within the framework set by this Commonwealth act.As you well know, the quirk was that Western Australia did not apparently have that legislative authority; every other state did, as at the date of the Wik decision. In discussions with Senator Harradine, it has been agreed that we will have a date. We had rejected having any date at all, but we will have a date. It will be the date of 31 March 1998, which will therefore bring into the system the Western Australian legislation, which now—like the legislation in other states—does allow the Western Australian government to allow diversification. But it must be within the restrictions set by this section 24GA; they cannot permit activities that go beyond the definition in section 24GA.09:45:005063Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I must say that I found it totally over the top for Senator Minchin to have made a couple of the comments he made this morning. First of all, he threatened us with the spectre of One Nation.JX4MINCHINSenator Minchin—You said we were appeasing racists.XE4Bolkus, Sen NickSenator BOLKUS—As I said across the chamber, this is the fire bug complaining about the fire. This is your bill. This is the product of a fear campaign that your side of politics started from the Prime Minister (Mr Howard) to the Deputy Prime Minister (Mr Tim Fischer) down, and you are coming in here telling us that we have to bend over backwards to accommodate your fear campaign and the results of it. Don't come in with that sort of humbug, Senator Minchin.Let us have a look at the full impact of what we are talking about here. Let us have a look at the full impact and the sordid nature of the deal that has been entered into by the government and Senator Harradine. I just cannot believe that Senator Harradine has allowed through to the keeper the enormity of the land grab that is involved in these particular provisions. Let us have a look at what is involved. I mentioned yesterday the definition of a mine. I also mentioned last night the fact that the change of date accommodates the change in the legislation in Western Australia—and not just on its own, by the way. The other aspect of this particularly pernicious provision is that those activities that were being conducted are now legitimised, as well as activities that could lawfully have been done and activities for which a licence, a permit, et cetera, could have been issued. This is not just at the time of the Wik decision, but now we are taking that date to March 1998. We have expanded the range of activities that are available to pastoralists. We have expanded them and we have also changed the date.Let us have a look at the real settings here in Western Australia, and I will at some stage ask whether other states have done the same sort of thing. Under the Western Australian Land Act 1933, there are provisions dealing with improvements or clearing but nothing specifically enabling permits or authorisations to be given by the minister or anyone else in relation to non-grazing activities or diversification. That was the law. Non-grazing activities or diversification was not on. There was a provision which enabled the minister to grant leases for special purposes but let us acknowledge that, under the pre-existing law at the date of Wik, pastoralists could conduct a certain range of activities and they were the activities that should have been protected. By the change of date, we now accommodate the Land Administration Act 1997. Section 106 of that act provides that pastoral land is not to be used other than for pastoral purposes without a permit. So we moved totally away from what was available to pastoralists under the previous act to a whole new range of areas. This is because of the sneaky, secret deal that has been entered into by the government and Senator Harradine.Let us look at that Land Administration Act 1997. It deems a number of things. It has a definition of `pastoral purposes' which goes far in excess of the commercial grazing of stock. To anyone who might be listening out there, I say to you that you should not just think of this as a theoretical debate involving graziers in Western Australia. Think of it directly affecting you because to the extent that we are impinging on native title rights here, to the extent that we are not accommodating them and to the extent that we are allowing people to trample over them, then you the taxpayer will have to pay the compensation for this gratuitous, excessive secret deal that has been entered into by the government. The buck comes from the taxpayer to pay for this secret deal. Section 93 of the Land Administration Act says:. . . "pastoral purposes" means the purposes of—(a) the commercial grazing of stock;I suppose people expect that to come within the classic definition of pastoral purposes, but section 93 goes on to state:(b) agricultural, horticultural or other supplementary uses of land inseparable from, essential to, or normally carried out in conjunction with the grazing of stock, including the production of stock feed; and(c) activities ancillary to the activities mentioned in paragraphs (a) and (b) . . .As if that was not enough, the legislation goes even further. I say to the taxpayer who might be listening to this that this is going to hit your pocket. Section 106 of the Land Administration Act 1997 has the heading:Pastoral land not to be used other than for pastoral purposes without a permitThat does not mean you cannot use it for other than pastoral purposes; it means that if you get a permit you can use it for other than pastoral purposes. Isn't it coincidental that the government's enabling legislation here picks up activities that may be conducted under permit, licence or authorisation? What can be done under permit? Section 106(1) states:A pastoral lessee must not use land under the pastoral lease for purposes other than pastoral purposes except in accordance with a permit issued under Division 5.Section 106(2) states:A pastoral lessee must not sell any product of a non-pastoral use of the land except in accordance with a permit issued under section 119, 120 or 122.We then go to those sections in the legislation and we see that section 119 relates to `permits to sow non-indigenous pastures'. Section 120 relates to `permits for agricultural uses of land under a lease', and states:The Board may, on an application in writing from a pastoral lessee, issue a permit for the lessee to use specified land under the lease for crop, fodder, horticultural or other specified kind of agricultural production if it is satisfied that the proposed use is reasonably related to the pastoral use of the land.There is no real restriction on that. `Reasonably related' means anything. I have covered sections 119 and 120, and I now go to section 121, which states:The Board may, on an application from a pastoral lessee, issue a permit for the lessee to use specified land under the lease for pastoral-based tourist activities of a specified kind . . .What does the explanatory memorandum say? What does the second reading speech say in respect of this legislation? I will tell you what some of it says and I may seek leave to table the speech later. That speech says:Permits to use pastoral lease land for non-pastoral purposes may be granted by the Pastoral Lands Board to permit diversity of use over pastoral lease land which is both improved and enclosed. In addition, the non-pastoral lease activity must comply with all the requirements of environmental and conservation legislation.As Senator Brown can tell us, that basically means nothing. The speech goes on:Permits for non-pastoral activities will not be granted where the non-pastoral activity is greater than the pastoral activity on the land. Where major non-pastoral projects are proposed on pastoral lease land, that portion of the pastoral lease land affected by that project will be excised from the pastoral lease.Talk about a sting in the tail. Where a non-pastoral lease project is proposed, there is capacity to excise that part from the pastoral lease, and a new lease for that non-pastoral project will be granted, subject to any native title considerations. So, basically, you move from a pastoral lease to a capacity to get a permit for just about anything. If that is not good enough, you can actually excise part of the land for a non-pastoral project. This is accommodated by this government in this legislation. It goes on:Permits will also be granted for non-pastoral activities such as in the case of pastoral-based tourist activities where the Pastoral Lands Board is satisfied that those activities are purely supplementary to the pastoral activities on the land.A fee will be charged . . . Under the government's proposal, endorsed by Senator Harradine, you have here a real capacity for change. There is some protection, and I am sure Senator Brown will be able to help us in terms of what protection really relates to conservation, but in terms of native title interest here they can sit by and watch land over which they have an interest go from pastoral to more than pastoral, and some of it can be excised for non-pastoral purposes under this provision.That is why we are offended by this, Senator Minchin. You say, `Why should we discriminate against the pastoralists in Western Australia?' The basic benchmark of this legislation was that what was available to be done by people legally at the time of Wik should also still be available to be done by them. There should be security for that. You have gone further, and now you have a situation where not only can you essentially upgrade the purpose but native title holders are now excluded from having any say in the granting of new rights to third parties, new rights which may seriously impair their enjoyment of native title rights.We have said all along that diversification should occur. There is a capacity for that, but everyone's legal rights should be taken into account in that diversification. That was the principle that was adopted by the Senate when we debated this in December and in April—allow diversification, link it to pastoral purposes, allow formal upgrades if need be, but take into account everyone's legal rights. If you want equality, you are not going to get it through this provision.As I said by interjection earlier on, equality is an often invoked term by the government with respect to this debate, but there is no equality here. One side has a capacity to virtually upgrade; another side is virtually ignored. I just find it amazing that Senator Harradine has accepted this sort of deal. That is what we are offended about. This is one of those secret nasties which I mentioned in my earlier contribution. It is one that we are enormously concerned about. We are concerned also about the dishonest way in which this decision has been taken and the way that this decision has not been transmitted to the public and to the taxpayer in Australia. The spin last week was `four major issues'. We were concerned about the details, and we made that clear at the time. This is one of those details. This is one of those details which treat Aboriginals basically as cattle on the property with no right of process. That is why we are concerned about it.We are also concerned in terms of off-farm activities, which is why we are pressing amendment R9. Senator Harradine agreed in April to R9. The effect of R9 was to exclude the right of pastoralists to graze cattle, et cetera, off lease without attracting the right to negotiate in areas where there has been a determination that native title holders enjoy a right of exclusive possession. Government amendment H20 has basically rejected the R9 that was passed by the Senate in April, and H20 provides that, in order to attract the off-farm exception from the right to negotiate, off-farm activities on land the subject of a native title determination must not be inconsistent with the exercise of the determined native title rights and interests. The amendment, for us, provides a level of protection but may also override a native title holder's right of exclusive possession where there has been a determination to that effect.Let us look at this in the total perspective of what we are talking about. It is interesting that, when it comes to native title holders, they can only have protection as to virtually that land with which they have a physical association, not a general claim area, but, when it comes to pastoralists, they can get protection for the whole thousands of hectares of land whether they are in constant use of it or not. There is no equality there either.We have concerns with this. I must say, the Australian taxpayer should as well. That is why, in a sense, we are really offended by the debate that has taken place so far on these particular provisions. I would actually like not only to hear Senator Minchin in respect of this but also to know what Senator Harradine thought he was doing when he signed up to this particular provision. Let us give it some honesty. Why not change pastoral lease through legislation and make it freehold? That way the whole of the public will know exactly what you are doing without your trying to hide it behind some circuitous route.09:58:005066Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I need some direction from you, Mr Temporary Chairman, because we are engaging in a process that is difficult to follow. The previous chair indicated that the issue we will be debating will be the rejection of government amendments, opposition amendments and Harradine amendments. But we are also debating amendments moved in the House of Representatives to which the government agrees—H17, H18, H19 and H20. I presume that if the Senate follows the disagreement by the House of Representatives and votes out those amendments, the new amendments H17, H18, H19 and H20 stand and we do not actually vote on those. I am trying to get at the process.09:59:005066Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—Mr Temporary Chairman, through you to Senator Woodley: at the moment we are dealing with the opposition amendments that ask the Senate to insist on the amendments listed on the opposition's sheet, and we are dealing with those seriatim. But we will ultimately come to a vote on the motion moved by the government—in relation to all these amendments that you have referred to in every section—`that the Senate not insist on amendments disagreed by the House of Representatives and agrees with the amendments agreed to by the House of Representatives.' So at the end of the day as I understand it—and I stand to be corrected—the ultimate vote of the Senate will be on that overall motion, having dealt with the particular opposition amendments in the meantime.10:00:005067Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—So, in fact, we are now having this debate on both issues but we will vote on the opposition amendments. And at a later time we will then approve, if that is the will of the Senate, the government amendments.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Watson)—Correct.HX5Woodley, Sen JohnSenator WOODLEY—I am sorry if I am appearing to be a little slow, but the process is a difficult one. I think it is useful to have that explanation. I do not want to repeat what Senator Bolkus has said. I have listened very carefully to what he said and I must say it is very helpful to have set out again what we are dealing with. I am very disturbed about what is being proposed in the government amendments. Yesterday I did say—and I wonder whether I should have bitten my tongue at the time—that probably Senator Harradine has improved the Wik 10-point plan but not enough. What we are now dealing with is something that was never envisaged in the 10-point plan, as I understand it. Certainly, it was not proposed in either of the previous debates.We are now proposing new amendments which go way beyond anything which was projected by either Senator Harradine or the government for those four sticking points. There is no doubt that the government amendments numbered H17, et cetera, will further erode native title rights. Let me just give you one illustration of what will happen if we pass the government amendments. For example, if we allow without any consultation an extension of a pastoral lease to include tourist activities, let me tell you about western Queensland that I know very well and which for years I have travelled over. On most pastoral properties there are paintings, stone circles and places that are obviously of great cultural significance. They exist in their hundreds, if not thousands. A lot of pastoralists would like to use those sites through perhaps including them in a tourist operation on that property.If this amendment is passed, as I understand it, there will be no need for those pastoralists to have any negotiation at all with Aboriginal people, even though we are talking about obvious Aboriginal cultural sites. This amendment will rule out the need for any negotiation. It just seems an absolute travesty of any natural justice whether or not we can have that direct physical connection. It is quite likely that it will not be possible to prove a direct physical connection by the limited threshold test that is being proposed under another amendment.How will Aboriginal people be able to have any relationship to those hundreds if not thousands of sites? I am saying hundreds of sites because that is how many I have seen, and I have not been on every pastoral property in western Queensland. It is a big place, and I have wandered around it for years.In this amendment we are saying that, notwithstanding the fact that here are obvious Aboriginal cultural sites, Aboriginal people will have no ability to influence a tourism activity that pastoralists will benefit from because of these cultural sites on their pastoral properties. If that is what this amendment is proposing—maybe we can get further clarification—that is just an illustration of what will happen when you extend not only the definition but also the date. It amounts to a prohibition on the ability of Aboriginal people to be involved in any negotiation or to be involved, in any meaningful way, in the protection of and explanation of those sites—and there are many of them. It is some years since I was on any of those sites, but no doubt I could take you to see many such places. The other problem is that there have been a number of media reports about pastoralists in western Queensland who have said that they will destroy these sites because they feel threatened by native title. There have been media reports of pastoralists boasting that they will put a bulldozer through these stone circles, paintings and the rest of it—I suppose they then describe that as `agriculture' or something. I am just horrified by what we are proposing to do here through these amendments which will extend the definition of a pastoral lease to include these other activities. I am just picking up the absolute travesty of any sense of justice for Aboriginal people in that one particular instance. I am just horrified at what we are proposing.10:07:005068Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—Through you, Mr Temporary Chairman: with respect, Senator Woodley, you are reopening the whole debate about primary production; you are not talking about the amendments that are before the committee. The government amendments before the committee are actually a restriction compared with the bill originally put by the government before the Senate. These are restrictions, essentially, on pastoralists which are in the bill and in favour of indigenous interests, as agreed with Senator Harradine. They obviously would not go as far as the opposition parties would want, but they are concessions made by the government, following discussions with Senator Harradine, which all relate to the point of view of indigenous people.We did not have any cut-off date in terms of when a future act could be validly done or not under state legislation. We have agreed to put a date in, but in a way that makes sure that there is consistency across the country. We did not agree to the restrictions proposed originally by the Senate in relation to off-farm activity, but we have agreed to some restrictions on that in H19 and also, in relation to H20, to the clarification of what we mean by small-scale gravel and other extraction activities.These are all concessions made by the government in these amendments when compared with the original bill. With respect to the accusation of humbug from the opposition, the humbug comes from the other side. The opposition is agreeing, by its definition, that the sorts of activities in Western Australia that Senator Bolkus told us about can all be done in every other state within the restriction of the definition of primary production in the act, but not in Western Australia. That is the effect of the opposition amendment. Every other state allows diversification up to the definition in section 24GA of the act, but Western Australia just happens not to.That is what I mean by the sort of discriminatory process—the double standards and the humbug. By the opposition's very amendment, all those activities can be engaged in in the five states, up to the definition of primary production in the act, but not in Western Australia, for no other reason than that at the date of the Wik decision that state legislation was not the same as in other states. That is just unacceptable.10:09:005068Brown, Sen BobSenator BROWNQD4TASAG00—This provision is, of course, as Senator Bolkus has pointed out so clearly, a massive wind-back of the rights of indigenous people in Western Australia. What Senator Minchin should be saying, if he was being fair, is that the same conditions should apply in other states as apply in Western Australia: that is, acrossthe board, there ought to be the right for indigenous people to negotiate on those developments which create a massive change to their lands and, therefore, to their traditional view of the lands, their cultural attachment to the lands and their ability to move on the lands—the lands as they have known them.But what is happening here is a further massive extinguishment of those rights. This is an `anything goes' clause. Any development on pastoral lands in Western Australia that is foreseeable and broadscale, one way or another, as with other states, is going to be able to proceed without the indigenous people having a right to negotiate. That is a long way from a right to a veto. We find again that this whole legislation is about recognising the claim of indigenous people to their lands but then leaving them totally disempowered when it comes to having a say as to what happens on those lands. We all know that as far as area is concerned, Western Australia has the biggest involvement. So in this particular debate we are talking about the biggest stealing of the rights of indigenous people in this country.Senator Bolkus has also correctly pointed to the changing of the goalposts. When this legislation was before the Senate in April or in December last year, or prior to that, it did not embrace the new Western Australian Land Administration Act 1997. But in his secret negotiations with the government, Senator Harradine has sneakily seen the opportunity here to waive the rights of indigenous people on a grand scale. Senator Bolkus was quite right to use the word `larceny'.Senator Harradine has obscenely used the term `angel in the detail'. It is the angel of theft that Senator Harradine has been paying obeisance to here. It is the stealing of the rights of indigenous people that Senator Harradine not only has been involved in but also has been involved in to the exclusion of the indigenous people who are involved. I cannot think of a much lower way of proceeding in politics. I do not know why Senator Harradine is not here to defend this indefensible process he has been involved in; he ought to be. He can speak with his flowery rhetoric; he can take his high moral stand; he can talk about being honourable, decent and fair—the terms he uses about his actions time and time again. But the reality is that the position he described as being honourable, fair and decent in December last year has been massively eroded by this single change for Western Australian indigenous people, this further broadscale removal of their rights, but he still uses the same epithet now: this is honourable, decent, reasonable and fair—the same string of adjectives applied to a totally different circumstance.In the meantime, there is a massive loss of indigenous people's rights involved here. But Senator Harradine does not see it as being any different; he still goes on with those terms of self-aggrandisement while it is the indigenous people who lose out. I know we do not have the numbers in this place but, as I said a couple of times last night, we at least need to mark the infamy that is occurring here. Senator Bolkus has done just that in terms of this particular clause or section we are dealing with.I ask the minister, though you, Chair, what are left of the rights of the indigenous people in Western Australia when it comes to the proposal by a consortium of cotton growers from Queensland and Western Australia to put a dam of up to 100 metres in height— flooding an area greater than the Ord River scheme—on the Fitzroy River on what is called the Dimond Gorge, or on one of two alternative sites upstream of Dangghu, otherwise known as Geike Gorge near Fitzroy Crossing?The ancillary developments are for a 500-kilometre canal from that site to near Broome and a massive cotton growing development of some 250,000 hectares—that is 50 per cent again the size of the total cotton growing areas in Australia at the moment. So we have a dam, we have a canal, and we have vast cotton growing areas in the hinterland near Broome. I ask the minister: under this legislation, what veto rights will the indigenous people have on any or all of those developments where they affect their lands?10:16:005069Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—We are talking about what are permissible primary production activities by the holders of pastoral lessees who, I would point out, may be Aboriginal or non-Aboriginal. There are, of course, Aboriginal pastoral lessees in this country affected by this legislation. I do not know too many pastoralists, whether Aboriginal or non-Aboriginal, who propose building 100-metre high dams on their property and nor is that contemplated by the definition of primary production set out in 24GA.Senator Brown did ask me a question without notice on this some time ago, and I said then that the rights of any native title holders or registered claimants in relation to that hypothetical project would depend on the nature of the tenure of the land on which this development is proposed. If it were vacant crown land and the project required a compulsory acquisition, then, depending on whether it was infrastructure or not, there would be a full right to negotiate; if not, if it were infrastructure or if it were a pastoral lease, then the rights would be those as set out in our new section 43A which are the same rights that the equivalent lessee would have.If we are talking about moving from the primary production activities set out in 24GA to full-scale agriculture of the kind you contemplate, then we have said in our previ ous debates and made clear in this bill that what would be required is that the state government that wished to issue a change in lease terms—to change from what is now pastoral lease permitting certain diversification to a full-scale agricultural lease—would have to go through a full compulsory acquisition process acquiring all the property interests involved, including those of the lessee on just terms, and including the native title rights through a due process and on just terms, in order to be in any position to reissue an agricultural permit for that sort of change of activity.So there is a quite complex process that any state government must follow according to this bill if it wishes to contemplate any such activity apart from all its own environmental restrictions and everything else. But in relation to native title it is a quite complex process that goes way beyond what we are talking about here. What we have before us is the question of the extent to which state governments can allow diversification of primary production activity, within the definition of 24GA, which does not contemplate the wholesale conversion of a pastoral lease to an agricultural lease. That does require this whole different process which is not the subject of the opposition's amendments.10:19:005070Brown, Sen BobSenator BROWNQD4TASAG00—Firstly, this is not a hypothetical scheme in Western Australia. As Senator Minchin well knows, a memorandum of understanding has been drawn up between the Court government in Western Australia and the cotton growing consortium that I mentioned earlier. There are no hypotheticals about this; this is a stark reality coming down the line for the disempowered indigenous people whose lands and waterways are involved.At this stage, I commend the Leader of the Opposition, Mr Kim Beazley, and the Leader of the Opposition in Western Australia, Mr Gallop, for having made the decision to oppose this reckless act of theft from the indigenous people and this environmental disaster that is inherent in this scheme, which the Court government is pushing and which Senator Minchin's colleagues are inherently backing into the future. By the way, I might add that, as with the Ord scheme, it is going to be a massive impost on the taxpayers' pockets in Western Australia for ever and a day if built, because you simply cannot run a scheme like this on an economic rationalist theory that it pay for itself. It will require a massive injection of taxpayers' funds to allow it to continue.I asked the minister about the veto rights of the indigenous people, and I do not want the minister to duck that. I want to ask him, for example, what rights the Bunuba people have to protect their lands facing direct inundation by this dam proposal which is on the drawing boards, under the scope of an MOU drawn up between the developers and the Court government. Under your legislation, here or elsewhere, will the Bunuba people have a veto right to protect their lands, their heritage and their traditional activities on this particularly beautiful part of the Kimberley?10:22:005070Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—There is, of course, no veto whatsoever under the current Native Title Act. Mr Keating made it abundantly clear in the preparation of the Native Title Bill, as it then was, that there was to be no veto at all; there would be only a so-called right to negotiate in relation to mining or compulsory acquisitions and that was not to be a veto. So there is no veto now—and we are certainly not imposing a veto—but we do make sure that any native title holders or registered claimants retain the right to negotiate in relation to mining and compulsory acquisitions for third parties on vacant crown land in respect of pastoral lease land.We have now spelt out, in relation to mining, the full range of rights which must be given in relation to compulsory acquisition on a pastoral lease. They must be given at least the same rights as a freeholder whose rights are being acquired, and that must at least mean the right to be notified, the right to be consulted, the right to object and the right to have that objection heard by an independent person. If the project is to proceed to full just terms compensation, those are the rights which ordinary Australians have in these cases, and that is the full assemblage of rights under the current Native Title Act. So there is no veto, nor is one proposed. As I understand it, this project does remain hypothetical and there is only, at this stage, feasibility. The federal Minister for the Environment has made certain comments about the extent to which we believe this should be approached extremely cautiously. I may speak for myself, but I think there is far too much of a dam consciousness in this country. But if we are just talking about what the rights are in these cases, they are fully protected in the same way that other Australians are in respect of any acquisition of their rights.10:24:005071Brown, Sen BobSenator BROWNQD4TASAG00—I am interested in the reference there to `ordinary Australians'. I would have thought the indigenous people come well within that terminology, but they do not, as far as the minister's delivery is concerned.The point I want to make is that when you get down to it, this legislation, backed by Senator Harradine, removes the rights of the indigenous people. Let me translate what the minister is saying to the committee. He is saying that they have no rights. The word `just', which is another Harradine favourite, is brought in here to cover over the fact that there is no justice in this. The aim of this legislation—and there is a real barb in the section we are currently dealing with—is to ensure that the indigenous people cannot protect their rights. For example, if this massive dam and the flooding of the valleys to the north occurs, what rights are the indigenous people left with in crossing their lands, in going about their ceremonies or in approaching the galleries of paintings in the gorges behind that dam? None—they are drowned. These are drowned rights that the minister says will be dealt with in just terms. You cannot; it is a non sequitur. It is a devious way of thinking. It is intentional, but the reality is that the indigenous people lose out yet again.The most notable thing about this debate is that Senator Harradine is not here to defend the fact that he sat behind closed doors, with the indigenous people locked out. He was not even able to tell the Wik people, when they did get into his place, what his arrangements with the government were. He could keep a confidence with the government, but he could not keep a confidence with the indigenous people with whom he danced. And he said he enjoyed that dance, just a few weeks earlier. What a travesty. What an awful circumstance for the first Australians. I think it is highlighted by the fact that this amendment means that massive further losses of the rights of indigenous people in the western third of this country have been entertained in those secret negotiations. They have been adopted and given the stamp of approval in those secret negotiations by the man who talks about angels but has, in fact, been thieving the rights of indigenous people while he did it.10:27:005071Bolkus, Sen NickSenator BOLKUSXE4SAALP00—My concern was expressed earlier, and I need to put a couple of things on the record and ask a couple of questions. The opposition position in respect of diversification was set out very clearly in all the previous debates. We were criticised by the minor parties, and that is on the record, because we did accommodate some diversification. But we did have a three-step approach.Our concern is not that diversification is allowed to go ahead but that, because of the dual impact of the liberalisation of what is allowed to be done, together with a change of date, the rights of native title claimants are in no real and meaningful way accommodated, particularly where there is allowance for massive upgrades in Western Australia under this legislation. We have always made it clear that there can be some capacity for off-lease developments but, once again, there has to be accommodation of native title claimants. If there are going to be massive upgrades then there are right to negotiate considerations. If there is going to be supplementary use, there has to be accommodation of the interests of indigenous Australians.Senator Minchin says, `Well, we are arguing that Western Australian pastoralists should have the same rights as people in other states.' But the direct impact of what you are allowing to happen here, under the secret deal, is that indigenous claimants in Western Australia will not have the same rights as indigenous people in other states. One stark example is the part I read out from the second reading speech earlier on, which read:Where major non-pastoral projects are proposed on pastoral lease land, that portion of the pastoral lease land affected by that project will be excised from the pastoral lease.We are talking here of a capacity to upgrade, a capacity to on-sell excision from a pastoral lease at the taxpayers' expense. Since three-quarters of that expense will paid by the Commonwealth government, there is no real burden on states to be careful about what they do and do not allow to happen. This is a sneaky nasty in this package. No matter how Senator Minchin tries to gloss over the fact that the combined effect of his legislation in this particular area does allow for this sort of upgrade and disregard of a claimant's rights, it is going to be there to be abused into the future. Senator Minchin, can you tell us where in one of the states there is such a capacity for excision of land from a pastoral lease for the purpose of non-pastoral projects and disregarded indigenous claimants' rights?10:31:005072Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I think Senator Bolkus misunderstands what is being proposed here. Simply because state legislation may permit a whole range of activities does not of itself mean that they can be performed. They can only be performed if they comply with the whole of the provisions and restrictions set out in the Native Title Act. In other words, the state legislation may permit—as may be the case with legislation in force in some states prior to the Wik decision—a whole range of activities which this act would in fact not permit because of the restriction in the primary production activity definition in, as I say, 24GA(1). In other words, that is the relevant restriction, not that simply because the state legislation says that it can be done it can be done. There must be, as we are saying, legislation in force permitting a state government to issue those permits but only up to the primary production definition in 24GA. In relation to excisions for agricultural activity, that would have to go through a completely different process of the act if that were proposed with a new title issued over the land and compulsory acquisition of native title, et cetera. With respect, I think you are off beam in the argument that is being put.On the information available to me, all other jurisdictions with pastoral leases do permit a wide range—prior to 23 December 1996—of primary production activities, including horticulture, cropping, cultivation, et cetera, on pastoral leases. The notion that these were simply pastoral leases has long passed into history. The development of agriculture and farming in this country has been such that this type of lease has developed through state parliaments and governments to the point where there is considerable diversification. In fact, what this act will essentially do in most cases is restrict the sorts of activities that can be done compared with the situation prior to the Wik decision.Just picking up a point made by Senator Woodley, the question of farm tourism was raised. From my recollection in our consultations with indigenous leaders, there is not an inherent and total blanket opposition to farm tourism because it is understood and accepted that many struggling farms do have to and are looking to engage in small scale farm tourism to supplement their incomes, which are affected by various primary production prices. But, as a result of arguments put to us by indigenous leaders, we did include a restriction which you will find on page 50 in subsection 24GB(3) in relation to farm tourism:However, this section does not apply to a future act permitting or requiring farm tourism if the act permits or requires tourism that involves observing activities or cultural works of Aboriginal peoples or Torres Strait Islanders.So that type of farm tourism is specifically excluded from the permissible types of farm tourism that can be permitted. That was in direct response to submissions put to us by ATSIC and the NIWG.10:35:005072Bolkus, Sen NickSenator BOLKUSXE4SAALP00—There is a real problem with the minister's answer. I think it reveals either a lack of understanding of his own legislation or maybe a lack of willingness to own up to it. What we are saying here is that pastoralists would have a capacity to move from one beast per 60 hectares to growing cotton without a right to negotiate with native title claimants. That is the full impact of what these proposals from the government amount to. They allow primary producers to change the nature of the use of the land from pastoral to agricultural, horticultural, ancillary purposes and also non-pastoral purposes. The reason that has been enabled by this legislation is this particular section that we are dealing with now.In April this year, a combination of Senator Harradine's amendment N1 and the opposition's N17 meant that the extent of primary production activities permitted on non-exclusive leases without a right to negotiate was those activities that could lawfully have been done prior to the date of the Wik decision, 23 December 1996. If you could lawfully have done it then, it was accommodated. If it was a formal upgrade thereafter, there was provision to take into account the right to negotiate. If there was ancillary diversification, then there was an obligation to consult. But the law made it very clear at the time. It effectively limited the rights of pastoralists to those which were actually held at the date of the Wik decision.In terms of primary production activities as well—and this is where this legislation has its direct effect—the amendments that were passed by the Senate in April this year limited the range of activities which could be done on non-exclusive leases without reference to native title holders to those activities done pursuant to the terms of the lease, authority, permit—or whatever—in existence at 23 December 1996. So, basically, any such activities which a licence, permit, et cetera, had allowed to be carried out at that time were accommodated.But now, because of a change of date and a drastic expansion of the range of activities permitted on non-exclusive leases without reference to native title holders, we have a massive loophole through which you could drive freehold title by another name. The direct, combined effect of the different aspects of this secret deal—not just secret from indigenous people as it was being developed but also in not being disclosed to the media last week when we were told about the arrangement between Senator Harradine, Senator Minchin and Mr Howard—is that the range of activities for which a permit licence authority can now be given, particularly in Western Australia, is much broader than it was before. That is the combined effect of this legislation and the WA legislation. I do not say it could have been done, but I should say that it could be done without involving indigenous claimants, that it could be done without a right to negotiate.Senator Minchin, this is where your legislation, I think, is objectionable to any fair thinking Australian. A lease is a lease. Despite what you said yesterday at a doorstop that pastoral leases are, in effect, freehold, the decision of the High Court in Wik and the decision of the High Court and just about every other court in the country on the nature of a lease make it very clear that a lease by its very nature is different from freehold. In effect, you are essentially asking people to translate a lease in all but name to something like freehold. I think that Australian taxpayers would find it offensive to think they are paying for a translation of a lease into virtual freehold title.The bottom line is that, before this new Western Australian act, pastoral leases in WA amounted to little more than a grazing licence; that was the impact of the 1933 legislation. Because of the impact of the legislation passed in April, there was capacity to move from that definition. But, within that capacity, there was also an obligation to take into account native title interests. We have now moved, post Land Administration Act 1997, to a situation where there can be substantial upgrade, without taking into account native title interests. No other property holder in the country would be subjected to this sort of discrimination and this sort of disregard for their rights.Senator Brown mentioned Senator Harradine. I am also concerned that Senator Harradine is not here, because there are pretty fundamental issues here that he should address. I mentioned earlier on off-farm activities. When we adopted a provision in respect of off-farm activities in April, it was a provision that Senator Harradine himself moved—Harradine R9. Basically, that provision ensured that Aboriginal interests, claimants' interests, the right to negotiate, had to be taken into account in respect of some off-lease activities. In moving that amendment, as recorded in Hansard on page 2223, Senator Harradine said:The government has indicated . . . amending section 24GD to limit off-farm activities to grazing and access to and taking of water. If a pastoralist wishes to undertake those activities on freehold land, the pastoralist would need the consent of the landowner. The section—and this is the government's section he is referring to—as currently worded, is discriminatory if that same pastoralist would not have to obtain the consent of the native title holders.Senator Harradine in April objected to what has been proposed now because, in his own words, it was discriminatory. For some reason, he has agreed to drop the amendment that redressed that discrimination. Senator Harradine yesterday said, `Well, there are examples of necessary discrimination.' Of course there are, and that is accommodated for in some respects.But I would like to know, I think the Senate would like to know and I think indigenous Australians at least would like to know what now justifies this act of racial discrimination. What now justifies Senator Harradine in taking a position endorsing racial discrimination—the racial discrimination that he himself identified very clearly just four months ago? He has now agreed to a provision which, by his very words, is racially discriminatory.We do not have the protection for indigenous Australians which, through the Racial Discrimination Act provision, was previously in the legislation. After last night's debate we have no such protection, but what we probably will have after this morning's vote on this particular provision is a Senate sanctioned act of racial discrimination, agreed to by government and Senator Harradine in closed secret session.As I say, it is difficult. I understand that Senator Harradine is doing now what he should have done perhaps three or four weeks ago—that is, talking to some indigenous Australians. But the difficult situation we are in now is that, while he is doing that—I believe he is doing that—we are, in a sense, constrained from holding the government and Senator Harradine accountable for this particularly pernicious aspect of the legislation.10:44:005074Brown, Sen BobSenator BROWNQD4TASAG00—In the wake of Senator Minchin's agreement that indigenous people have no veto rights, I want to know what negotiating rights, under this provision or the proposed act as a whole, the indigenous people will have to the flooding of their lands in the central Kimberley if the proposed Fitzroy Dam goes ahead?10:45:005074Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—With due respect, I think Senator Brown is simply filibustering. I have answered that question three times. I answered it some months ago in a question without notice in question time. I think we should deal with this question and put it to the vote.10:45:005074Brown, Sen BobSenator BROWNQD4TASAG00—The minister did not answer the question and he is not answering it now. If the minister wants to progress through the committee stage, the easiest thing to do would be to answer the question and to let people who are listening know what the answer to that question is. I will put it again: having established that there are no veto rights, what negotiating rights do the indigenous people, such as the Bunuba people in central Kimberley, have when it comes to the very real threat of the flooding of many square kilometres of their traditional lands which are also leasehold lands in the central Kimberley?10:46:005074Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—Once more, I will not respond to a hypothetical project. I will simply repeat, in as short a form as I can, the procedural rights available to registered native title claimants and native title holders with respect to various types of land and various types of activity, because I do not know the nature of the land in ques tion. If it is vacant crown land, then the right to negotiate continues for mining and compulsory acquisitions for third parties, as under the current act for those respective groups. If it is a pastoral lease, in respect of mining it is the section 43A provisions. If it is a compulsory acquisition, at the minimum it is the rights that a freeholder would have in respect of that land. If the land was held as freehold land, which is the basic test of the whole native title legislation, they must at least amount to a right to be notified, a right to be consulted, a right to object to an independent body and have those objections heard just like anybody else and, if the objection is not sustained, a right to full and just terms compensation. Those are the rights that are generally available to freeholders in Australia, certainly in that area. I have said this three times already.10:47:005075Brown, Sen BobSenator BROWNQD4TASAG00—If the objection is upheld, is there any way in which that can be overruled? That is the first question. The second question is what about the rights of the indigenous people when it comes to threatened cultural sites and sacred sites threatened by inundation by such a project?10:48:005075Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—The current act provides an override for the right to negotiate with respect to the relevant minister. That is maintained. With respect to it being a section 43A matter and if the objection is upheld, again, there is a ministerial override available, but it must involve consultation, it must take account of the views of the minister responsible for indigenous affairs, and it must be on the basis of the state interest before that override can be effected, and it is subject to judicial review.The second part of your question concerned sacred sites. This does not affect the operation of Commonwealth and state heritage legislation, which is not the direct matter of this act. As with any other activity that does not necessarily involve native title, the relevant state and federal heritage legislation operates, and any project, even if it does not involve native title per se, must comply with that legislation.10:49:005075Brown, Sen BobSenator BROWNQD4TASAG00—To finalise this, when the minister is talking about the relevant minister, is he referring to the state minister or the national minister?10:49:005075Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—Again, it depends on the regime in place, which will depend on the nature of the land in question and the nature of the activity proposed. If it is the full federal right to negotiate, it is the federal minister. If it is a section 43A scheme, because it is a pastoral lease, it is the relevant state minister—just as under the current Native Title Act if a state like mine in South Australia has set up its own right to negotiate regime, as ticked off and approved by the federal government, then it would be the state minister under that scheme, subject to judicial review, et cetera. Our section 43A scheme does require for it to be approved by the federal minister and that there be in place appropriate legislation protecting sacred sites.10:50:005075Brown, Sen BobSenator BROWNQD4TASAG00—What we have ascertained here is that the indigenous people have no veto rights.JX4MINCHINSenator Minchin—They don't under the current act.QD4Brown, Sen BobSenator BROWN—The minister throws up his hands and says that that is the case under the current legislation. I know that and I oppose that legislation. What we are seeing is the serial removal of the rights of indigenous people to have an effective say in their lands, their culture, their relationship with the lands, their traditional movement on the lands, their traditional ceremonies and their traditional relationship in toto. I am just eking that out from the minister. What he has made clear here is the basics. There is no veto right but there is a right to go through processes about leasehold lands. At the end of the day if the indigenous people were to impress a so-called independent investigation, for such a project as dam flooding areas which were important to them the state minister could override that. That is where we are at.We are at that position in a region where, so far as I could ascertain, none of the people want a dam project. What is going to happen is that decisions will be made in Perth, no doubt under the pressure of vested interest with huge amounts of money from elsewhere, with compliant ministers. That is the situation we are at in Australia, where the indigenous people lose out all the way along the line. As Senator Bolkus said, it is a bit late in the day for Senator Harradine to be explaining the inexplicable to indigenous people, even as this legislation through his grant of numbers to the government is passing through this place. I suppose he will see that as an act of giving, but what Senator Harradine is involved in is an act of larceny and taking, as Senator Bolkus has pointed out. How could we support this sort of amendment being brought into this place? Of course it will be opposed.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Hogg)—The question is that the committee does not insist upon amendments government 26, opposition N19, Harradine N1, opposition N17, Harradine N2, opposition N18 and Harradine R9. Question put.10:58:00The 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, S. McGauran, J. J. J.Minchin, N. H. Newman, J. M.O'Chee, W. G. *Parer, W. R.Patterson, K. C. L. Payne, M. A.Reid, M. E. Synon, K. M.Tambling, G. E. J. Tierney, J.Troeth, J. Vanstone, A. E.Watson, J. O. W.31Allison, L. Bartlett, A. J. J.Bishop, M. Bolkus, N.Bourne, V. Brown, B.Carr, K. Collins, J. M. A.Cooney, B. Crossin, P. M.Crowley, R. A. Evans, C. V. *Forshaw, M. G. Gibbs, B.Hogg, J. Lees, M. H.Lundy, K. Mackay, S.Margetts, D. Murphy, S. M.Murray, A. Neal, B. J.O'Brien, K. W. K. Quirke, J. A.Ray, R. F. Reynolds, M.Schacht, C. C. Sherry, N.Stott Despoja, N. West, S. M.Woodley, J.Ferris, J. Campbell, G.Kemp, R. Conroy, S.Herron, J. Cook, P. F. S.Hill, R. M. Denman, K. J.Macdonald, I. Faulkner, J. P.MacGibbon, D. J. McKiernan, J. P.* denotes tellerQuestion so resolved in the affirmative.10000CHAIRMANThe CHAIRMAN—We now move to statutory access rights.11:00:005076Bolkus, Sen NickSenator BOLKUSXE4SAALP00—Madam Chair, I think we move to renewals. We have an opposition amendment in respect of renewals. It is one that needs to be aired.10000CHAIRMANThe CHAIRMAN—It is not on the list that has been circulated.XE4Bolkus, Sen NickSenator BOLKUS—I gather it is with the Table Office. I can explain it. The discussion will go on for some time, I am sure.10000CHAIRMANThe CHAIRMAN—Does the opposition amendment have a number?XE4Bolkus, Sen NickSenator BOLKUS—As I said, it is with the Table Office. It is probably being numbered now. The opposition's amendment is to oppose H52 and to press opposition amendments N21, N22, RN23 and RN27. The effect of what we are seeking to do is to tackle the concession that has been encompassed by the government deal with Senator Harradine in respect of renewals; a concession which allows, through a renewal, a greater impact on the land involved than would have been allowed under the amendments passed by the Senate in April this year.H52 amends section 26D(1) by adding paragraph (d), which ensures there is no greater term allowed in a renewed lease, and paragraph (e), which ensures there are no greater rights. They, to a large extent, reflect opposition amendments RN23 and RN27, which were accepted by the Senate in April.The only omissions from the previous position relate to the exclusion of leases that permit the mining of different minerals or which will have a greater impact on the land and waters concerned. That prohibition was adopted by the Senate in April and, once again, we have a moved position here from what was adopted in April, without any real explanation to the public, the stakeholders—by that I mean the exclusion of Aboriginal interests from the discussion—or the taxpayer.The failure to take into account any greater impact on land resulting from a renewed mining lease means that native title holders will not necessarily be afforded the protection of the right to negotiate where a renewed mining lease, for instance, is of a substantially larger scale; where there are different technologies or processes of extraction—for instance, you can move from underground to open cut. There is no protection for claimants, native title holders, in respect of any such transition of the mode of mining. There could, for instance, be a different means of transporting ore and minerals.You do not have to think all that hard in respect of any of these areas to acknowledge that, because of this greater and different impact resulting from the mining operation, any such renewal without accommodation of a right to claimants in the process will erode and, in an indirect way, extinguish any access to native title for those claimants.As I say, there could be different means of transport, different technology, or a larger scale operation. Also, there could be a different waste disposal provision; a renewed mining lease may apply different environmental standards for land use and rehabilitation. There could be a situation involving a larger mine and the retention of a substantially larger work force. It could involve the construction of mining townships and infrastructure, with direct and indirect environ mental and social impacts, such as liquor outlets, people visiting, and the possible desecration of sites. There could be a substantial impact on the way of life of native title holders through one, or a combination of any, of the factors that I have mentioned. Despite that major impact on native title holders, on their way of life, on their communities, sites and whatever, there is no accommodation of their interests through a right to negotiate.These were all reasons why, in April this year and December last year, we amended the legislation to ensure that there was a right to negotiate. It is for these reasons that the opposition presses its amendments now. This sort of transition, this sort of upgrade, in terms of operations is not protected against in terms of giving titleholders any rights to the process.Our concern is twofold: firstly, you have got this erosion of native title holders' interests; and, secondly, there is no explanation, particularly, once again, from Senator Harradine, as to why this is happening. He may have other things to do; we all have other things to do. But we are talking particularly about parts of the package that were not given publicity, which were basically stuck in the back pocket by the government and secretly arrived at. These provisions were not announced; they were hidden in the detail. We would like, as a parliament, to get an explanation from Senator Harradine as to why he accepted these amendments. Maybe Father Brennan will help us in the distant or not-too-distant future by writing another article in the Sydney Morning Herald. He may explain to us after this debate is over why this position was taken.For an informed debate in this place, it is important for us to actually get to understand not just the government's position on this but what motivated Senator Harradine to cop a further incursion on native title holders' interests. It is important that we know this. It is important for the process here. If you are going to give indigenous Australians any respect, you need to explain to them why you are taking away their rights. By not explaining to them why you are taking away their rights, you are showing to them the greatest disrespect of all.We will press ahead with this amendment. We say to the public that this amendment erodes native title holders' access to property rights as such. It is a compensatable right as such. It has to meet the requirements of the just terms provision of the constitution. To the extent that those rights have been taken away without adequate notice, process and explanation, they are rights that can be compensated through the common law process. The point to stress here in conclusion is that if anyone ever thought there would be certainty out of the secret arrangement reached last week between the government and Senator Harradine, they should think again, because time after time, measure after measure, detail after detail this leaves indigenous Australians with no other alternative but to take their cases to the common law. The whole purpose of the Native Title Act is to provide a streamlined alternative to the common law. It fails again here.11:09:005078Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I do not want to repeat what Senator Bolkus has said. I underline, from the Australian Democrats' point of view, our great disappointment. Again I say that I was taking at face value the statement that we were dealing with the four sticking points and that Senator Harradine had delivered a position that was an improvement on the four sticking points. What we are discovering again, as Senator Bolkus has pointed out, is that there are a whole lot of other issues that were never part of the briefing that we received from Senator Harradine. In fact, all the debate about the four sicking points seems to have been a smokescreen for a whole lot of other issues that are just horrific.What is now coming to us is a whole series of new issues that were just never discussed and announced and never part of any briefing. It was never indicated that they were part of this agreement. They are now being dropped on the Senate from a great height. I have to say that they are crushing my spirit. While we were prepared to say yesterday that perhaps Senator Harradine has improved the Wik 10-point plan to a certain extent but not enough to satisfy us, I now have to bite my lip on that. We are now seeing amendments and new propositions, and there was never any indication to us that these were part of the agreement. They now seem to be part of the agreement.Senator Harradine, where are you? Come and tell us what on earth you are doing. I am not going to repeat all the stuff that Senator Bolkus said. I am horrified at what is going on here. In terms of the process, all we are really debating is a message. We ought to have the whole bill back here. We should be going through it point by point. We should be able to debate what are entirely new propositions. I am repeating the appeal that Senator Bolkus is making to Senator Harradine to come and explain what on earth is going on.11:11:005078Cooney, Sen BarneySenator COONEYSF4VICALP00—I want to test where we are going with the government's amendment H52 and item (e). This is part of a scheme whereby what is to be allowed is an extension of time but no other rights. If there is an extension of any other rights, the right to negotiate revives. Item (e) states that `no rights are created in connection with the right that were not created in connection with the earlier right.' Does that phrase `no rights' mean no consequences or does it mean no rights?The minister and his advisers will perhaps be familiar with the Shylock analogy, where he is allowed to have his pound of flesh but no blood. Is that `no rights' phrase intended to mean that you get no consequences? As Senator Bolkus said, if new technology were brought into the mine which, as a consequence, disturbed the soil elsewhere, even unintentionally, is that position prohibited by subitem (e), or does subitem (e) mean that, as long as the terms of the rights do not advance beyond a time limitation, it is all right, even though the consequences of the exercise of those rights might be quite damaging to the land? I want to get that clarified. Does the phrase `no rights' mean no consequences, or does it mean no rights as listed in the agreement?11:14:005078Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—It means what it says. If additional legal rights are created in connection with the actual right to mine—that is, if they were not there with the original right to mine—then you must go through the right to negotiate process. If you are simply renewing a right to mine with all the same ancillary legal rights that were there in the original grant and no more, then it can be renewed, but if there are any additional legal rights granted to the holder of the mining lease, then it must go through the right to negotiate.I must say that I think Senator Woodley has again missed the point of this and, with respect, I am surprised that the opposition has brought this one on. The net effect of the position in the bill as amended by the government amendments is, I must say, from the government's point of view, really not any different from the proposition being put by the opposition. What we are saying is that a right to negotiate will apply to a renewal if that renewal involves a longer term for the mining lease, or if it involves a greater area of land over which mining may occur or, as we just discussed in respect of Senator Cooney's question, there are greater rights granted. If any one of those circumstances applies, then the right to negotiate is triggered. Otherwise, the only renewals that can be granted without the right to negotiate are where you are not changing the grant in anyway at all. That does not seem unreasonable.As a result of our discussions with Senator Harradine, we have imposed further conditions that were not there in the original bill that have to be satisfied if a right to mine is to be renewed without the right to negotiate. Again, we have accommodated Senator Harradine's concerns by placing restrictions in here that were not there in the original bill. I know that the favourite sport of the day on the other side is to get stuck into Senator Harradine. I suppose, from my point of view, that may be nice but I would have to say that a lot of the attack is unfair. The amendments being brought by the government are essentially accommodations of Senator Harradine's position, with him coming from the point of view of seeking restrictions on the govern ment's bill that are to the benefit of and in the interests of indigenous people.What you have to compare this with is the bill brought in by the government originally. You have to compare that with the amendments that we have agreed with Senator Harradine should be added to the bill. In every respect, they involve accommodations by us that are restrictions on essentially the mining industry, the farming industry or state governments and are to the benefit of Aboriginal people. They may not go as far as the opposition amendments would seek to go, but they are concessions on the part of the government as a result of our discussions with Senator Harradine and I commend them. I am not sure, in the spirit of goodwill, that there really is a lot of difference between where the government is now at on this bill and what the opposition is actually proposing.11:18:005079Brown, Sen BobSenator BROWNQD4TASAG00—Senator Minchin, you can defend Senator Harradine in all respects save one—that is, he is not here. This is a very crucial debate about amendments which would not be before this place if he had not secretly drawn them up with the government and, we maintain, against the interests of the indigenous people of this country. If Senator Harradine chooses to stay out of the chamber while this debate is taking place, it is hardly fair to chide people on this side of the chamber for feeling frustrated that the democratic process of engaging him in debate—because he is half the equation in coming forward with these amendments—is itself frustrated by him not being here. That said, I note that amendment H24 refers to:. . . native title rights and interests in relation to the land or waters that will be affected by the act.Minister, what waters does that allude to?11:19:005079Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—My apologies, Senator Brown, I had my mind on other matters. You will have to repeat your question.11:19:005079Brown, Sen BobSenator BROWNQD4TASAG00—Government amendment H24 relates to: . . . native title rights and interests in relation to the land or waters that will be affected by the act.I just wondered if the minister could tell the committee what waters are being covered by that terminology.11:20:005080Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—That is all onshore waters from the low tide mark, including all lakes, rivers, et cetera, from the low watermark. So it is all onshore waters as defined by the act.11:20:005080Brown, Sen BobSenator BROWNQD4TASAG00—My understanding is that as far as the intertidal zone is concerned the indigenous people have had their rights stripped bare, as if the sand miners had already been through. When the minister says that it refers to waters down to the low tide mark, he must mean that it does include the intertidal zone. I ask the minister whether he was correct in telling the committee that it did include the intertidal zone.11:21:005080Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—Senator Brown confused us by talking about H24, which does not relate to mining per se but to the question of pastoral leases where you are talking about non-exclusive possession grants. We are talking about the renewal of mining leases generally speaking, but there is a different regime when you are talking about the renewal of pastoral leases for longer periods of time. The discussion we are talking about right now—and I am sorry if I confused the opposition because I was confused by Senator Brown's question—concerns the renewal of mining leases and what conditions apply where the right to negotiate applies.As we discussed before, there are rules relating to the application of the right to negotiate. Where the right to negotiate does apply, it will apply to renewals which are for a longer term, are a greater area of land or waters, or grant additional rights. If the right to negotiate does not otherwise apply, you go through the alternative procedures. I hope I am making myself clear in that.So the premise for this discussion, for the purposes of the opposition, is that we are talking about land or waters and where the right to negotiate generally speaking applies to mining. The subset of that is that, if a mining lease is sought to be renewed, the right to negotiate will apply to the renewal if these conditions prevail.11:23:005080Brown, Sen BobSenator BROWNQD4TASAG00—It is almost as clear as the mud in the intertidal zone. Because we are dealing with both things in this section, let us make it clear for the committee that, as far as mining is concerned, it does not involve the intertidal zone but, as far as leaseholdings are concerned, it may involve the intertidal zone because you used the phrase `low watermark'. Is that what you are saying?11:23:005080Bolkus, Sen NickSenator BOLKUSXE4SAALP00—While Senator Minchin is trying to get an answer here, our concern is similar to Senator Brown's. The water now starts from the high watermark whereas, under the 1993 legislation, that intertidal zone area was defined as land and attracted the right to negotiate. Under this legislation, it is redefined as water and, as a consequence, does not attract the right to negotiate protections that were afforded under pre-existing legislation. So we are talking about the definition of water now applying from the high watermark and including within that definition the intertidal zone.QD4BROWNSenator Brown—The low watermark.XE4Bolkus, Sen NickSenator BOLKUS—I think you are right, Senator Brown. Senator Minchin did say the low watermark, and I was looking for an opportunity to correct him. I think I have done it now.11:24:005080Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—The confusion was H24, which talks about the renewal of non-exclusive agricultural leases. If a non-exclusive agricultural lease were to go to the low watermark, these conditions would apply. But, in relation to mining, there is no right to negotiate in that intertidal zone. The right to negotiate applies from the high watermark.11:25:005080Bolkus, Sen NickSenator BOLKUSXE4SAALP00—The concern here, of course, is that we are not talking about a theoretical matter. We are not talking about a couple of lines on a piece of paper. We are talking about an area, the intertidal zone, on which and with which claimants or holders have had a long association. It is that part of the water with which they have had their association. They have exercised native title rights and exercised rights as to fishing and all sorts of other spiritual and physical attachments.So, just by a very nifty use of a couple of words here—basically, by moving the intertidal zone from one category into another—we are removing the right to negotiate, which has been available to indigenous people, and doing it, once again, as part of this package that has been presented as a benign and positive package to indigenous Australians. It is deceitful. It is dishonest. It is full of devilish tricks. In a sense, I can understand why Senator Harradine is not here this morning. It is a pretty hard package to defend, and Senator Minchin is finding it difficult defending it.11:26:005081Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I find no difficulty at all in defending the government's amendments with relation to the renewal of mining leases where the right to negotiate applies. As I say, I see very little difference between what the government is ultimately proposing and what the opposition is putting forward. We diverted to a discussion about what goes on in this small zone, the intertidal zone. As I have said, the confusion arose because we started talking about pastoral lease renewals in the intertidal zone.In relation to mining in the intertidal zone, to the extent that there is any, the bill provides that the rights with respect to mining shall be those that would apply to a freeholder. So, in respect of mining, if they hold native title to the intertidal zone, the bill guarantees, as is the general underlying proposition in the Native Title Act as it currently is, all the procedural rights of a freeholder. From the high watermark up, it is the right to negotiate where we are talking about vacant crown land.11:27:005081Brown, Sen BobSenator BROWNQD4TASAG00—I do not know whether Senator Minchin has been to northern Australia, but this is no small matter. The intertidal zone is quite vast. But, as Senator Bolkus has pointed out, it is much greater when it comes to the interests of the indigenous people because, as with human habitation around the world, it does tend to concentrate where the water meets the land. That is where people live, for all the obvious reasons of the bounty of the sea and the land in that region. I want to ask Senator Minchin: what happens if a leaseholder puts a farm stay tourism place in or affecting the intertidal zone where indigenous people have traditionally moved, fished and carried out their traditional way of life?11:28:005081Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I revert to our fundamental proposition—that is, in relation to the procedural rights attaching to various Australian titleholders, our premise is that, to the greatest extent possible, they should be treated equally. If there was any sort of development proposed in the intertidal zone which affected either a native title holder or any other holder of any other lease, which could well exist—any other Australian who may have any other type of lease in the intertidal zone that might be affected by the proposed development—those title holders, be they the native title holders or the ordinary title holders—but certainly in the case of native title holders—must get rights as though they held freehold to that land.That may well be greater, in fact, than the rights that someone who has some other lease to do some other activity in the intertidal zone which may be affected by that development may get under their particular form of title. We are saying that, to the extent that a development is proposed and affects a native title holder in the intertidal zone, they must be given, for that act to be valid, the same rights as a freeholder would get if they held freehold to that particular part of the land. I am happy to defend that for ever and a day.11:29:005081Brown, Sen BobSenator BROWNQD4TASAG00—So if the freeholder held a piece of land and somebody else wanted to come along and put a development on their land, they cannot. That is it, pure and simple— unless there is some government acquisition of the land. Is the minister telling the committee that, if there is a lease covering that intertidal zone held by somebody who has taken up that lease, say, in the last 50 years as against the traditional owners who have been there for the last 50,000 years, then, as far as developments in that intertidal zone are concerned, the leaseholder will not be able to, for example, entertain a tourist development—modest or otherwise—because the indigenous people's freehold rights will prevail? Or just to explain that using the minister's own terminology: because the indigenous people's rights, which he says are equivalent to freehold rights, will prevent such a development.11:31:005082Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—As I have said repeatedly, the whole premise of the Native Title Act is that, generally speaking, native title holders should get the same procedural rights as a freeholder would have. It is interesting in this argument about native title that we tend not to talk about `native title rights' per se but about `procedural rights', which are something separate and apart from the native title rights themselves. We spend an enormous amount of time on procedural rights.In the original Native Title Act, the Keating Labor government set in place the fundamental premise that, given their presumption that native title could amount to the equivalent of exclusive possession or freehold—now we know differently in relation to pastoral leases—the test should be that they should be granted the procedural rights of a freeholder, whatever they may be in the various states. There was an exemption to that—and that was that, in relation to mining or compulsory acquisitions, this special right to negotiate would apply. Again, the whole presumption was that we were not talking about pastoral leases but about vacant crown land.There was some confusion in the original Native Title Act as to where that extended in relation to the water line, whether that was the high- or low-water mark. We have clarified that as being the high-water mark. If there is native title held in the intertidal zone—and, as I say, that may well not amount to exclusive possession; it could be more like what we have seen in the Croker case—there are procedural rights which the state government must grant to the native title holders before issuing a lease or a permit for any other activity. They must grant to those native title holders the same rights they would have to grant to someone who held freehold to that particular piece of land—or treat them as though they held freehold even though their native title rights may not amount to that.11:33:005082Brown, Sen BobSenator BROWNQD4TASAG00—So the native title holders or claimants are going to be in the same position that I would be in if I had freehold land. That is, if some developer comes along and wants to do something on my freehold land, they cannot. I am in the position where all I can do is negotiate and hope that the minister, if I disagree with the development, does not override my decision not to allow the development.I am interested in getting this clear because this situation is going to crop up. It is going to be a very vexatious issue in the coming century right around the coastline of northern Australia—at least where leasehold affects this zone. The minister, if I read him right, is saying that what the indigenous people do have is tantamount to a veto. I do not think that is the case because, in effect, the indigenous people are again going to find themselves vetoed by state ministers when it comes to developments that all sorts of people are going to want to put on indigenous people's land so that they can make a buck.11:34:005082Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—What the procedural rights amount to would depend on what the procedural rights would be for a freeholder in a similar situation. Generally speaking, around Australia, they do not amount to a veto. There are quite significant procedural rights of the kind that we have talked about in here before—about having to be notified, having to be consulted, having the right to object and all that sort of thing—but, generally speaking, there is not a right of veto.We have a major difference between us—and I think the opposition would be more on our side on this—in that Senator Brown, through you, Madam Chair, seems to believe that native title holders in virtually all circumstances should have a power of veto and that nothing can be done on native title land unless they say so. That is the position of the National Indigenous Working Group. They say no development on any land on which native title may be held unless they agree to it, which is a veto. Senator Brown is perfectly free to advocate such a position, but that is not a position acceptable to the government, and I would not have thought it acceptable to the opposition.11:35:005083Bolkus, Sen NickSenator BOLKUSXE4SAALP00—Madam Chair, there is something totally objectionable in Senator Minchin's response, and the record needs to be cleared up. What we have been talking about as being relevant to that intertidal zone has been a right to negotiate. A right to negotiate is not a right of veto. If you want a right of veto, you go back to the common law through the injunction processes and through the time delays in the processes available. What people can do through the common law is to frustrate a project and a process.The reason why we have a Native Title Act is to provide an alternative process and, within that alternative process provided for in the Native Title Act, you have a right to negotiate. It is worth remembering particular aspects of that right to negotiate: the right to negotiate provides a process for an expeditious handling of a native title holder's claims and the interests of other parties—of all the stakeholders.There are time lines in the right to negotiate process—three months for expedited procedures and six months for non-expedited procedures—at the end of which, if there is no agreement, there is a determination. In the right to negotiate you are talking about a process which is geared towards outcomes. For instance, if at the end of the negotiation period there is no agreement, it goes to a negotiated settlement; it has worked success fully. It has worked successfully in that it has been embraced and been attractive to people who have native title claims, and it has also worked successfully because it has provided finite time lines for those who have an interest in pursuing a project as well.It is worth also pointing out in this particular part of the debate that the alternative section 43A that has been proposed to us by Senators Minchin and Harradine does not have those time lines. If you really want to work to a situation of uncertainty, indefinite processes and indefinite time lines, then you ditch the right to negotiate and you pick up section 43A. Section 43A does not impose a regimented system of ensuring outcomes. If anyone in the public representing stakeholders thinks, or if the stakeholders themselves think, that this section 43A is a great alternative to the right to negotiate, just remember project after project that has relied on the compulsion, the force, of a pending time line to get people to a negotiated outcome. It will not be there. There will not be criteria on which a process and a claim will be assessed, and there will not be definite times as to the periods during which such claims need to be negotiated.Section 43A, as it has been developed, is nothing like the concept that was proposed and mooted earlier this year—a concept which, as I said yesterday, I found difficulties with in April, and I expressed those difficulties to Senator Harradine. But it is a process that has been offered by the government. The flowery words, the normal words, the words that the pollsters told them to use, came out all the time—just, fair, certain. It is unjust and it is unfair, and for those who want certainty, there are no time lines, no criteria and no compulsion on the system to work; it is uncertain.The dishonest thing about what we are hearing this morning is that we are told that native title holders have a capacity and ability to establish freehold type rights. The government has done something sneaky in respect of this; it has not addressed these rights in the part of the act where you might expect them to be addressed. Sneaked in towards the end of the act at section 253 is the provision that says that these right to negotiate rights which were available to titleholders before this legislation now will not be available.But the government does not say that. What it does do is redefine the term `waters'. In a dishonest way it redefines the term `waters' to exclude from the previous definition of land that intertidal zone area. Why does it do that? It does so to ensure that the right to negotiate is not available to native title holders in respect of that strip of land with which they have had historical, physical and other associations. It is sneaky in that it does not do it honestly and up front, and it is sneaky in that it hides it at the end of the legislation.The government also has a bit of a consistency problem here. On the 7.30 Report last year, the Prime Minister said that this right to negotiate is not a right of veto. In the parliament here today Senator Minchin refers to it and describes it as a right of veto. I for once agree with the Prime Minister: it is not a right of veto. But we do have a government that basically ascribes definitions to things in order to con the public and with no real reference to the real subject it is talking about. Senator Brown, you are right. Senator Harradine, to the degree of being up front and honest in respect of what you are doing here, it is probably not too late to embark upon it in this debate.11:41:005084Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—In response to the accusations of sneakiness and other devious behaviour, can I make the point that our clarification of the situation with respect to the right to negotiate in the intertidal zone was made absolutely clear and up front when this bill was released one year ago. Twelve months ago, in clause 26(3), we have a heading `Sea and intertidal zone excluded'. This is in respect of the right to negotiate provisions. It says:This Subdivision only applies to the act to the extent that the act relates to a place that is on the landward side of the mean high-water mark of the sea. A reference to an act to which this Subdivision applies is to be read as referring to that act to that extent only. So there is nothing sneaky or devious about this. It has nothing to do with our discussions with Senator Harradine. Our quite deliberate clarification of the area on which the right to negotiate applies has been in this bill for one year.10000CHAIRMANThe CHAIRMAN—The question is that opposition amendments RN27, N21, N22 and RN23 not be insisted upon.Question resolved in the affirmative.XE4BOLKUSSenator Bolkus—Madam Chair, I think it is apparent that we do not have the numbers to carry the day here, but I do want the record to show that the opposition voted for pressing those amendments.QD4BROWNSenator Brown—The Greens wish the record to reflect their vote for pressing those amendments.HX5WOODLEYSenator Woodley—The Democrats have also voted for pressing those amendments.10000CHAIRMANThe CHAIRMAN—The next item on the list is the freehold test and offshore. The question is that opposition amendments RR107, RR110, and Harradine 18 and Harradine 21 not be insisted upon.11:44:005084Bolkus, Sen NickSenator BOLKUSXE4SAALP00—By way of explanation, we do have some problems with the package that has been developed by the government and Senator Harradine. In April this year, the opposition supported and the Senate passed—and in fact the government accepted at the time—Senator Harradine's amendments H18 and 21, which limited the application of the freehold test where there are coexisting non-native title rights that are required. It limited that application to cases involving compulsory acquisition of those rights; therefore, the freehold test could not be used to achieve validity of compulsory acquisition of native title rights and interests where coexisting non-native title rights on the same land were not acquired compulsorily.What we tried to do then was maintain a measure of non-discrimination. In July this year—just a few days ago—the House of Representatives disagreed with amendments that the government had accepted in April this year. As a consequence, the government proposes H31 and H36, which apply to land and offshore areas respectively. Our concern is that these provisions do not provide equality. These amendments that are proposed now enable the states and territories to achieve validity for future acts via the freehold test where there are coexisting non-native title rights that are acquired by surrender, cancellation, resumption or other means as well as by compulsory acquisition. Thus, native title and non-native title rights on the same land are to be treated differently. So this call of equality that has been made by the Prime Minister and Senator Minchin once again has proven not to be correct.Pursuant to this particular part of the deal, the freehold test can be used to achieve validity of compulsory acquisition of native title rights and interests where coexisting non-native title rights on the same land are acquired by means other than compulsory means. It is unacceptable to us; it does not meet the equality test and it does not meet the fairness test. So, for that reason, we are pressing amendments 18 and 21, and we oppose government amendments H31 and H36.We are also concerned about how procedural rights afforded by the freehold test may be complied with. In April the government accepted our amendments RR107 and RR110. These related to the persons who are able to exercise the procedural rights afforded by the freehold test onshore and offshore respectively. If there are registered native title claimants, they of course have them, but if there are no registered claimants the relevant rep body has a right to comment on the proposed future act before it is done.Although those amendments were passed in April, in July the government disagrees with them and has substituted new amendments H35 and H38. These provide in the new sections 24MD(8) and 24NA(10) that if, because of sections 24MD(6A) or 24NA(8) respectively for onshore and offshore places, native title holders have a procedural right that requires another person to do something in relation to the native title holders, and there is no determination of native title, then one way of giving effect to the requirement is to do the thing in relation to any registered native title claimant. If there are no registered native title claimants, one way to give effect to the requirement is to ensure that the relevant rep body has an opportunity to comment on the doing of the act.Our concern here is that this proposal would leave people who assert native title but have neither a determination nor a registered native title claim for such a determination out in the cold. It is yet another incentive contained in this particular deal for native title holders to lodge native title claims. If they are not on the Register of Native Title Claims, such people will not even gain the benefit of the limited protection for their property rights that the freehold test offers.This particular proposal limits the benefit of the freehold test for native title holders. Opposition amendments RR107 and RR110 merely state that registered native title claimants and native title representative bodies have certain procedural rights. They do not limit the breadth of the benefit offered by the freehold test by stating that a narrow way of complying with procedural rights is sufficient, as do government amendments H35 and H38.In respect of procedural rights afforded by the freehold test, the deal provides that native title holders and registered native title claimants have the same procedural rights as they would have in relation to the future act on the assumption that they instead held ordinary title to the relevant land in respect of both onshore and offshore acts, as amended by government H37. By implication, the benefit of the freehold test is limited to people either on the Register of Native Title Claims or with a successful determination of native title.We find that, in these circumstances, people who merely assert their common law right are excluded from the benefit of accessing the legislation. They may lose their rights if a future act extinguishes them before they have a chance to have them determined by a court. We find this particular loophole unacceptable and, as a consequence, we oppose government amendment H37.There is a provision also in this particular basket which relates to alternative processes to the right to negotiate. Government amendment H33 inserts a section 24MD(6B) which provides an alternative scheme to the right to negotiate as it currently exists in respect of the compulsory acquisition of native title rights and interests for the purpose of conferring rights on third parties, or the creation or variation of rights to mine for the sole purpose of the construction of an infrastructure facility associated with mining.Pursuant to the proposed section 24MD(6B)(a), the new scheme applies to compulsory acquisitions, which would be subject otherwise to the right to negotiate but for the operation of the exclusions set out in subdivisions G to L. I know this is a bit hard for people to follow, but so is the act as it has been developed.Our concern here is that there is exclusion by other amendments to the right to negotiate. For instance, for the sake of the record, proposed subparagraph 26(1)(c)(iii)(B), inserted by government amendment H48, and subsection 26(2) inserted by H49, provide that compulsory acquisitions to allow conversion of non-exclusive leases including pastoral leases to perpetual leases, compulsory acquisitions in towns and cities, and compulsory acquisitions for the purposes of constructing infrastructure, are exempted. So we have here another substitution for the right to negotiate and, in addition, we have the possibility for the substitution by states and territories under section 43A.However, our concern is not just the substitution. We are also talking about a weaker scheme than the section 43A scheme in a number of ways. A weaker scheme than the alternative section 43A has been proposed and embodied in section 24MD(6B) that we will be discussing under the basket and definition of right to negotiate. There are different time lines provided under 24MD(6B)—two months, I think, is available here, whereas the right to negotiate, for instance, provides for four months. There is no requirement for good faith negotiations. There is no duty to consult with native title holders seeking registration. There is no requirement that a non-government grantee of land be involved in the process at all, which basically will prevent any commercial negotiations over non-mine infrastructure and all land acquired within towns and cities for grant to a non-government party.In respect of the duty to consult with registered claimants or native title corporate bodies, it is limited to:. . . ways of minimising the act's impact on native title and, if relevant, any access to the land or waters and the way in which anything authorised by the act can be done.Basically, you have a situation now where the time lines are running out, there is no obligation for good faith negotiations, and there is no duty to consult. In the absence of all these, the whole consultation imperative is being eroded.There are also no express criteria upon which an independent body must make its determination. I find this quite amazing in respect of the proposed section 43A and also in respect of this particular provision—no time lines, no express criteria. If this particular provision had been in the legislation adopted in 1993, or even last year, the government would have been condemning us for putting in place a system of unworkability because of the vagueness and the uncertain criteria upon which an independent body must make its determination.There is also concern that a state or territory granting body—which will usually be the minister—need not comply with a determination of the independent body or person upholding the objection or determining that the grant must be made subject to conditions if the body has consulted with and taken into account the views of the relevant Commonwealth, state or territory minister for indigenous affairs. `Taken into account the views of' could mean that you finish up having a corridor chat or a midnight drink, and that would be sufficient to satisfy the demands of this provision. Also, the state or territory granting body need not comply with a determination if it is in the state or territory interest—and that includes the interests of the relevant region or locality—not to do so. These are vague, uncertain, unjust, unfair provisions that really afford no procedural rights or certainty to anyone. So we oppose government amendments H32, H33 and H34 and press our amendments in respect to this.There is a final point which I think needs to be stressed consistently. These provisions were not made all that public last week when the spin was on by the government. The two reasons they were not made public are that they are an unfair erosion of rights accepted in this place in April this year and, if you want a recipe for uncertainty, the last thing the Prime Minister and Senator Harradine were going to talk about was how loose, unstructured and uncontrolled the processes they are now proposing as an alternative to the right to negotiate really are. For these reasons, we are pressing our amendments.11:55:005087Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I just want to make sure that we are keeping up with the debate. I know we do not have a running sheet, but we do have a sheet of categories with the amendments listed. We seem to be jumping over them. The previous chair said that, according to whatever she had in front of her, this was the order. But I would point out that we did the Racial Discrimination Act and confirmation and then we jumped over indigenous land use agreements. We did primary production, jumped over water—which does not have any opposition amendments—then we did renewals, jumped over services to the public, and now we are doing freehold test and offshore. I am just trying to keep up; I am not trying to be difficult. After we do freehold test and offshore, are we then going to move to right to negotiate?10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Watson)—We are in the hands of the committee.11:56:005087Bolkus, Sen NickSenator BOLKUSXE4SAALP00—If I can help, I am raising issues where the opposition is pressing amendments and trying to overturn the agreement. In respect of ILUAs, we did not have any amendments that we were going to press because, although there were some concerns as to some aspects of the package, the package itself was not all that different in substance to what was agreed to by the Senate in April this year. That is why we skipped that, and I think the same applies to the other areas we have not gone to. As I said, we have not got amendments.In respect of freehold test and offshore, there may be a legitimate reason for confusion there. The first batch of amendments which the opposition circulated did not have amendments in respect of freehold test and offshore. We have circulated a subsequent set of amendments that do raise objection to the package in respect of that, and those amendments should be with senators now. I would ask you to note that as well.The right to negotiate is the next item that appears on the list of amendments proposed by the government. If you look at our first set of amendments, there are no opposition amendments with respect to the right to negotiate. We do have concerns and we have been working through them. If you look at the list of amendments that have been supplanted by a smaller but still extensive list of amendments agreed between Senator Harradine and the government, you will see there is a big job there. I would like to suggest that, when we come to the right to negotiate, we defer that to essentially the last item of discussion. I, for one, am not really on top of all the amendments we are moving at this particular stage, and I am sure the Senate would like to have a bit more time to look at the amendments we are proposing. That is an explanation as to why we have jumped a few areas but it is also a request that we defer right to negotiate until later in the debate.11:58:005087Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—Thank you, Senator Bolkus. I just wanted to make sure that we were following. I wonder if the government could respond to that. For instance, if, before lunch, we get through freehold test and offshore and come to right to negotiate, I will be drowning.11:59:005087Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—The government just wants its motion before the committee accepted but, as I indicated before, we will happily cooperate with the way in which the opposition parties would like to work through this. In that spirit, I have indicated that if you would prefer to defer the right to negotiate to the final discussion, that is fine by me.11:59:005088Brown, Sen BobSenator BROWNQD4TASAG00—I cannot but note again the absence of Senator Harradine from this discussion. It is a long time since he ended talks with indigenous people this morning, which were far too late anyway. He is very crucial to the fact that we are here. I know he did, as I read it, agree with the contention last night that this is racially discriminatory legislation with intent. I do not know if that is the reason he is not here to defend this indefensible retreat from his past position, but I think it is most untoward, it is unfair, and I think it shows disrespect and disregard for the importance of his presence here to explain his critical role in this sell-out of indigenous people's rights. I will continue to refer to that in the hope that he might respond and come back into the chamber to explain his actions.I would like to ask the minister about the offshore position. Let us take the Mornington Island region as an example. As the minister would know, it is a particularly beautiful region set in the south of the gulf—green and blue seas of unusual clarity, very rich in sea life—where the people continue to live from that sea bounty as they have since time immemorial. But there are real threats to that livelihood. For example, there is a massive breakwater being built out from Karumba to service the Century Zinc mining operation. As part of that, there is dredging of huge amounts of soil, which has been dumped in the centre of the gulf. As you know, it is an area of cyclones and massive storms. There is real fear by the indigenous people that with such developments their environment on which they depend so much is going to be affected enormously by some future storm event and pollution.They are also quite rightly concerned about the loss of rights they have to prevent exploitative fisheries moving in on their traditional fishing grounds and picking them bare. Remember that we live in a world where 16 of the 17 big fisheries in the world are in a state of collapse through overfishing. There seems to be no government in the world that is really prepared to stand up to that in the way it should if we are going to ensure sustainability of fishing resources into the future. I ask the minister: what rights would the people of Mornington Island have if somebody wanted to place an oil derrick smack bang in the middle of their traditional fishing grounds?12:03:005088Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I am sorry, Senator Harradine. What was the proposed development in the middle of their fishing grounds?QD4BROWNSenator Brown—I am Senator Brown. There is some difference between me and Senator Harradine. Senator Minchin, what rights do the indigenous people in the Mornington Island area have to their traditional fishing grounds if somebody wants to stick an oil derrick smack bang in the middle of those grounds?JX4Minchin, Sen NickSenator MINCHIN—The position in the current act is that everything offshore is permissible. There is effectively no specific future act regime; the current act provides that any native title holders have the rights offshore that correspond to the rights of an equivalent non-native title holder. We have taken up that scheme. We did contemplate the possibility that native title may be found offshore. We left that to the common law.As we know, Justice Olney made a decision in relation to Croker Island yesterday which, if upheld by the High Court—and I gather the Aboriginal claimants themselves are going to challenge the decision in the High Court—means that the scheme in our act, which is quite detailed, would then apply. It does provide a framework for state, territory and Commonwealth governments to apply with respect to the possible existence of native title offshore.Again, we get down to the business of procedure, not the rights themselves—we seem to be talking about procedure all the time. It is a matter of what procedure a state, territory or Commonwealth government must go through if it wishes to issue leases, licences, permits or whatever involving activity offshore and what must be done with respect to any native title holders in that area. As we saw with Justice Olney's decision, the native title rights are significantly restricted. They certainly do not amount to exclusive possession. They have the right of access to traditional fishing which must be non-commercial—rights of that kind. They have relatively limited rights which presumably they would have been able to use anyway.In respect of procedural rights, we have made it quite clear that, generally speaking, the native title holders must be given the same rights that an equivalent titleholder would have under that state, territory or Commonwealth legislation. Again, we are applying the doctrine of equivalence. The common law does not provide any procedural rights per se, but we are legislating to provide that, as with the procedural rights attaching to any statutory titleholders offshore, the equivalent titleholders, to the extent that they have procedural rights provided by statute, must apply to the native title holders.Let us say that a commercial fishing operation had certain fishing rights to an area and a state government proposed to allow an oil rig to be put in place. Whatever procedural rights attached to that commercial fishing lease would, I am advised, under our legislation, then attach to any native title holder who held native title rights to pursue traditional fishing in the area.12:07:005089Brown, Sen BobSenator BROWNQD4TASAG00—I will be very brief because I have to step outside for a moment to talk about the lost rights of the West Papuans. Before I go, I would like to try to translate what the minister said. It was quite a long answer to a very simple question. I asked what rights the indigenous people of Mornington Island might have if somebody wants to stick an oil derrick in the middle of their traditional fishing grounds. Do I interpret your answer to mean that they have no rights? Is that a correct interpretation of your answer, Minister?12:07:005089Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—That of itself is not correct. We have maintained in a sense the same regime that exists under the current act, as approved by the Senate in 1993. That relates to the rights that will attach—the procedural rights. Remember that again we are speaking of procedural rights here. As has been said by Justice Olney, at common law state governments are free to issue statutory rights to Aborigines or non-Aborigines and that those rights prevail, just as they do under the Wik decision. So whatever common law rights might survive are subject to whatever statutory rights are issued—and, of course, they may well be issued to Aboriginal people.But the procedural rights that by this legislation are required to be attached by the government issuing the lease are those that it would grant or that are granted under that particular jurisdiction to equivalent title holders. In your case, if we are speaking of fishing, whatever rights a holder of a lease, a licence or a permit to fish in that area had, so those rights would also attach to the native title holders. That is the fundamental position we have adopted throughout this: that we want procedural equivalents; that we are requiring the governments that issue these permits, leases or licences to grant to native title holders the same procedural rights they grant to equivalent title holders. That is our essential premise, and it is an eminently reasonable one.12:09:005089Brown, Sen BobSenator BROWNQD4TASAG00—I am talking about oil derricks. Cutting through all that gobbledegook—and I am talking about the current situation—if somebody wants to sink an oil derrick in the middle of the traditional fishing grounds of the people of Mornington Island, there is not much that those people can do about it, is there, Minister?12:10:005089Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—They would be able to do whatever the holder of a professional, commercial or other fishing licence would be able to do. I am not an expert on the various regimes and what procedural rights attach to fishing rights when, let us say, an oil rig is proposed. I am happy to get you some advice on that, if that is what you would like. But, whatever other Australians' rights are with respect to the proposed placement of an oil rig that affects their statutory fishing rights, the native title holders of fishing rights would have the same rights—it is those rights they will get under this legislation—whereas at common law, in effect, they would have none.12:10:005090Brown, Sen BobSenator BROWNQD4TASAG00—There is a bit of a difference here. Commercial fisheries are a business; native title rights, traditional owners' rights and fishing grounds are an essential part of the ability to survive, as well as the deep cultural attachment that indigenous people have. This is where Senator Harradine had to agree that this legislation is deeply discriminatory. It is chalk and cheese. To simply dismiss the indigenous people's particular and ancient rights to these places as being nothing more or less than a commercial fishing person's rights is obscene. That is what the minister is trying to cop out with here, even though we know from past practice that it is not going to make much difference if there is a commercial fishing licence there when it comes to somebody with the potential to put an oil derrick in the place.I would be pleased to see any further information that the government can come up with on this. But I stand by the assertion, and it is as clear as day, that indigenous people would have no rights under those very threatening circumstances and a whole host of others—wharves, jetties, marinas and so on—that threaten their environment, their culture and their livelihood.12:12:005090Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—It is not true to assert categorically that they simply have no rights. They will have whatever rights other Australians will have. To that extent, we are simply continuing the regime that applies under the current Native Title Act. So, if your attack is on us, it is an attack on the previous government.12:12:005090Cooney, Sen BarneySenator COONEYSF4VICALP00—Just to clarify that, apropos the discussion with Senator Brown, on page 10, government amendment H33(6A) states: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.`Ordinary title' is a freehold estate in fee simple. I am just trying to clarify how that would work. For example, does your procedure in the courts vary from state to state? If you take the example of an oil rig that Senator Brown gave, would it depend how far offshore the rig was so that if it were in state waters the procedure would be different from the procedure available if it were further out beyond the state boundaries and within the Commonwealth jurisdiction?If that is so, does subsection (6A) not leave a lot of uncertainty as to what procedures may be available, depending upon the state, depending upon whether it is Commonwealth? I would add that there are common law rights, such as the right to claim an injunction or to hold up the process in some other way. So I would like to know how subsection (6A) adds to the certainty that we are looking for.12:14:005090Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—They do add to the certainty by clarifying the procedural rights attaching, in this case, to the intertidal zone. The discussion that was held before makes it clear that those procedural rights shall be those that would attach if they instead held ordinary title—that is, freehold title. So it is a certifying or clarifying provision to ensure that we do know what procedural rights must be granted to native title holders in that particular zone.If it is in offshore waters, as I said before, if it is in the territorial waters of a state and it is a state issue of a particular lease or licence, they must grant to any native title holders the same procedural rights that that regime would attach to any other equivalent titleholder. If it is the Commonwealth in Commonwealth waters or the territory in territory waters, the same thing applies. What we are doing as a Commonwealth government, through the parliament, is ensuring that the respective governments of Australia, in authorising economic activity of one kind or another, guarantee to their constituents who are native title holders a minimum floor in relation to their procedural rights. They must give them the same procedural rights they would give to other people affected by that proposed development.12:16:005091Cooney, Sen BarneySenator COONEYSF4VICALP00—Is this not another example where the impact of this legislation may affect indigenous people in different ways, depending upon where they are? You might answer that the ordinary citizen is affected by different laws in different states, but if the overall idea of the legislation is to give equality to indigenous people, do you not deny that by clauses such as 6A?12:17:005091Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—It is not so much our bill but the current act, and I refer Senator Cooney to the current act under section 23(6) under procedural rights, which states:In the case of any act to which this section applies . . . the native title holders have the same procedural rights as they would have in relation to the act on the assumption that they instead held:(a) to the extent that the act is in relation to an onshore place—ordinary title to any land concerned . . .(b) to the extent that the act is in relation to an offshore place—any corresponding rights and interests in relation to the offshore place that are not native title rights and interests.We are essentially maintaining the same scheme that this Senate voted for back in 1993.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Watson)—The question is that the amendments not be insisted upon.XE4BOLKUSSenator Bolkus—Once again, we will not force this to a division, but we ask that the record note that the opposition was very keen to press its amendments.HX5WOODLEYSenator Woodley—The Democrats want their vote recorded at this point as being no.Question resolved in the affirmative.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—The committee will now consider statutory access rights.12:18:005091Bolkus, Sen NickSenator BOLKUSXE4SAALP00—With respect to the category of statutory access rights, the opposition does wish to press the amendments which the Senate found acceptable in April this year. Once again, we are talking about one of those areas that was not publicised last week. Once again, we are talking about an area where there are further incursions made on the rights of native title holders as defined by this parliament in December last year and April this year. When people went out last week and claimed that it was a huge success for the indigenous side of the debate, they were not being totally up-front with the public nor with indigenous Australians. This is another one of those areas where indigenous rights are being eroded.I turn to opposition amendment N30, a provision which was accepted last year and in April this year. One of the conditions for the application of the government's statutory access regime is that each native title applicant who seeks access to a pastoral lease must have had regular physical access to the pastoral lease as at 23 December 1996 or must be a descendant of a person who enjoyed such access. Opposition amendment N30 was a provision that created an exception to the regular physical access requirement to take into account cases where native title holders and applicants have been denied access to their traditional country either by an act of government or by a lessee.The government has now rejected the Senate's amendment, and in doing so we believe the government and Senator Harradine have ratified wrongful acts where Aboriginal people have been unlawfully excluded from pastoral property in the past. It has even rewarded the wrongdoers. We see this particular measure as a disgrace to the process and a disgrace to legislation which will evolve from this particular process. In the first debate of the bill, the government may not have understood what it was doing. That excuse I do not think was available then to Senator Harradine, nor is it available now to anyone. There is no excuse of ignorance available to any party to the secret deal in respect of this particular provision. It is a gratuitous flick at indigenous people, and it is one that needs to be redressed.With respect to the removal or the suspension of common law rights, opposition amendment 183 and Democrats-Green amendment (WA) 151 were accepted last time. Section 44C of the bill prohibits any person from enforcing native title rights over any part of a lease that is the subject of a native title application, whether or not the application covers the whole of the lease area. Opposition amendment 183 deleted the offending section entirely. The government has rejected the Senate amendment. It has reinstated section 44C. Basically this provision removes any net benefit to native title holders from the government's statutory access regime. It is likely to lead to anomalies, to injustice and to inequality between parties, and as such the opposition presses the amendment moved and carried in this place in the earlier debates.Once again, we are embarking upon and probably finalising a debate on this particular point without any reason from Senator Harradine as to why he chose to concede this point. These two points are important ones. They are points that he thought were important twice over the preceding eight months or so with respect to this debate. Without reason, without excuse, without any publicly stated comment, we are now seeing an abdication of a position on these particular provisions. The point to stress once again is that those who thought this package related to only four highly disputed areas were wrong; it relates to a hell of a lot more, and this is another manifestation of what it relates to.12:23:005092Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I am just checking with Senator Bolkus that opposition amendment N30, which is being knocked out, is what we call the locked gate amendment. I do not understand how this could be given away. If the physical connection of a person to land has been inhibited by an act of government or by reason of the person having been denied physical access to land by the lessee, by a person acting on behalf of the lessee or by any other person, if those actions have prevented a person having physical access, then surely it is absolutely fair that that should be a reason for enabling that person to make a claim.I remember Senator Harradine arguing for this passionately and supporting it strongly. I would have thought that this in particular would have been an issue that the government also would have agreed to. It seems to be absolutely fair. But now we have got reneging on a position which was clearly put and voted on. I believe that the government amendment—although they are going to claim it does the same thing, I suppose—just does not in any sense live up to what we were doing in April through opposition amendment N4.I am amazed that, when we thought that we were at least having some improvement on the 10-point plan legislation, here again is an issue which was not signalled or in any way part of a briefing from Senator Harradine to me. Again we have got a further restriction, a further winding back of rights and a further reinforcing of the determination, it seems, of the government and Senator Harradine to make sure no native title rights are going to survive this process.Now not only do I have to bite my tongue but I think I should tear it out because yesterday I was prepared to say that somehow or other the agreement by Senator Harradine was an improvement. Now we are discovering as we go on further and further that not only we have not got an improvement on the government's 10-point plan but we are now beginning to tear away what were quite fair, reasonable and logical amendments that we agreed to in April. So once again I am amazed that this is happening.12:26:005092Cooney, Sen BarneySenator COONEYSF4VICALP00—Minister, amendment H74 to be moved on behalf of the government, which relates to statutory access rights, states that the procedures can be taken before the Federal Court or a recognised state/territory body, which is a body that is approved by the minister. What assurances have we got that the recognised state/territory body will be equivalent to the Federal Court? I think that is a matter that ought to be clarified.We specify the Federal Court, but it would not be appropriate, in my view, to have it done by a court of a lesser standing than the Federal Court or, indeed, a non-court—it could be a body that is not a court. So what assurances have we got that the recognised state/territory body will be an appropriate body?12:27:005093Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—It will be a function of the body to which the claim is brought by the native title claimants. If their claim has been brought before the Federal Court, which in almost all cases it will be under these provisions, then that will be the body. But the act provides, as it does now, for the recognition by the Commonwealth of state equivalents where they meet the requirements of the act and, if such a state equivalent is authorised and if the claimants bring their claim before that body, then obviously we are allowing for that body to determine this matter.12:28:005093Cooney, Sen BarneySenator COONEYSF4VICALP00—If it were an equivalent, then that would be okay. But section 251 of the Native Title Act says that it is the Commonwealth minister who has to determine in writing whether it is proper. I am wondering what mechanisms you have in place to assure that the recognised state/territory body is going to be equivalent rather than just a body approved for the purposes of amendment H74? If the word were `equivalent,' I think there would be no problem, but the word `equivalent' does not appear.12:29:005093Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—We have essentially kept the same regime that applies under the current act, as Senator Cooney has mentioned, in terms of what is called a recognised state or territory body. Section 251 of the current act is essentially maintained in terms of the criteria that have to be satisfied before the Commonwealth recognises that state or territory body. This is entirely a matter for the claimants; it is not imposed from above. It is for the claimants to decide where they bring their claim, so if they bring it before the Federal Court, that is where it will be. If they bring it before a recognised state or territory body, it will be decided by that body. So it is a function of their choice as to the jurisdiction within which their claim is being heard.There was no obligation whatsoever on the Commonwealth government following the decision to proceed down this path of statutory access rights. We could have simply left it as a matter to be determined by the courts. That would be a function of hearing the native title claim, deciding whether their claim could be made out and then what rights attached to the claim as to whether or not they could have access.What we did, as an accommodation of a proposition put to us by Aboriginal interests, was in response to their fear—I would hope unfounded; certainly there is no evidence of it—that some pastoral lessees, in response to the Wik decision, having been told that their leases were secure by the previous government and that they did not have to worry about native title, might react to the Wik decision by seeking to exclude from leases Aboriginal people who had regularly had access to that lease, normally with the concurrence of the lessee.There is no basis for that fear, as we note. There is no evidence that that is what has occurred, but we were quite happy to put into this bill a guarantee, in response to that request, that those with regular physical access to pastoral leases, as at the time of the Wik decision, would have that access confirmed statutorily. If there were some formal arrangement whereby they had access to a lease pre-Wik, then in response to any fears that somehow there might be some reaction, we said, `Okay, we'll guarantee your regular access by statute.'That is what this statutory access regime does. It guarantees, to those who had regular access at the time of the Wik decision, that access as a statutory right, pending the determination of their native title claim, so that that access can continue until the claim is determined. What happens then will be a matter for the courts. If their claim is upheld, the court will determine what, if any, access they have; if it is not upheld, then they go back to the status quo.This whole scheme was, in that sense, a response by us to requests from indigenous interests that we do ensure that people with current access continue to have that access pending the outcome of their claim. The Senate tried to, in a sense, backdate that whole thing from the date of the Wik decision which, as I said in the previous two debates, extended, way beyond the government policy, the imposition we were making upon the holders of leases, pending the outcome of the native title determinations. That was something we were not prepared to do. We are making this concession. We are imposing on pastoral lessees this obligation to provide statutory access to those who had informal or otherwise access at the time of the Wik decision. That will be enforced. But we are not prepared to go beyond that, for a whole variety of reasons.In terms of opposition amendment N30, we are simply not prepared to change our policy approach, which we think is fair, reasonable and a just balance of rights. Of course, the situation in most jurisdictions—certainly in that of Senator Bolkus and I—is that Aboriginal people do have access to pastoral leases. That is the case in most jurisdictions, anyway. So I am not sure about the extent to which this becomes an issue in practice; it may not be an issue at all.Opposition amendment 183 was to omit section 44C, with the effect that, from our point of view, pastoral lessees could be vulnerable to common law actions by native title holders, even where they are already subject to a claim in the Federal Court and required by our act to give statutory access to their pastoral lease during the period before their claim is finally determined.We were not prepared to subject the lessees to that issue whereby they could be challenged in a number of jurisdictions and have to respond. They have a legitimate right, like everybody else, if they believe that the native title claim on their property is not well founded, to respond to that and to seek to preserve what they believe to be their exclusive possession, or their view that the native title claim does not stand up. If they are having to respond in not only the Federal Court where the native title claim is brought but also any other jurisdiction where there is an action in common law to force access, we believe that to be absolutely unreasonable, because in any event the whole matter will be determined by the Federal Court in response to the native title application, as to whether their native title claim is upheld and whether it amounts to a right of access—given, as I say, that in most jurisdictions they have access, anyway.Government amendment H74 is an accommodation of an argument put to us by Senator Harradine. We are making it clear that those with a registered claim will not be prevented from seeking to enforce their rights in the Federal Court during this period. So they can argue before the Federal Court, where their registered claim is, that they should have interim access if they are not otherwise granted that access under the statutory access regime. They can make their case in the Federal Court, but not take that action in other courts.In all of this, we have tried to find a reasonable balance between, on the one hand, the holders of leases and, on the other, native title claimants who are seeking a determination that they hold native title. As I say, this is all in this interim period prior to any determination that they hold native title. Once they hold native title, they have fully enforceable rights, according to whatever the court says they are. This is an interim situation. We are, as I say, accommodating Senator Harradine's concerns on this matter by providing specifically that they can seek to enforce rights in this interim period before the Federal Court, pending their determination.12:37:005094Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I hear what the minister is saying, but he has just avoided the whole issue. We are not talking about confirming or supporting the rights of people who have had access and making sure that that access is not denied by some subsequent act of a pastoralist who is afraid of the consequences of Wik. We are talking about a far more serious issue, which N30 does address, and that is where, for many years, people have been locked out of pastoral properties. I do not have them here with me, but there are dozens, if not hundreds, of recorded cases—and they are recorded—of where this has happened.I can give you a quite famous case in which I was involved in trying to get some justice for Aboriginal people. In 1979, in the Tanami Desert, some Aboriginal people visited a pastoral property and were forced off at gunpoint. A couple of them were wounded because they were shot at. This occurred not in 1788 but in 1979. The only reason that this case was uncovered—these were tribal people—was that a friend of mine who was a Bible translator heard these men discussing the issue in their own language. Because he understood the language, he investigated.He twice went to the Attorney-General in Western Australia to get the case heard. It was heard in Fitzroy Crossing. The Aboriginal witnesses were accommodated at Halls Creek. They were then expected to get to Fitzroy Crossing by 10 o'clock the next morning for a court hearing, which was quite impossible. That is an instance of people who were locked out.6H4HARRADINESenator Harradine—But that's covered in here.HX5Woodley, Sen JohnSenator WOODLEY—It is not.6H4HARRADINESenator Harradine—The enforcement of common law is there, brother.HX5Woodley, Sen JohnSenator WOODLEY—The common law did not operate. There are many instances. That is just one example of what has happened to Aboriginal people. They have been not only locked out but at gunpoint have been shot at. It happened not 200 years ago but in 1979. I can get the details of the court case and everything, if the Senate wants them, and put them on the record. That is one example that I am personally acquainted with.12:40:005095Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I found Senator Minchin's previous contribution quite offensive. He is saying that with Wik there was no obligation on the government to do anything about statutory access rights. He is saying to Aboriginal people, `Aren't you really lucky that we've given you a few crumbs off the table.' That is in essence what he is saying. He is saying, `We didn't have to do anything. There was no obligation on government to protect statutory access rights, but aren't we good that we've done so.' What has gone off the table in the process in December last year, in April this year and in this deal with Senator Harradine in the last few days? It is the height of offence and arrogance for a government to be saying, `We did something that we really didn't have to do' when what it has done is just so insignificant. Moreover, when it has done it, it has not even done it in the spirit in which it should have been done.I do not find it amazing that the government is trying to claim it has done something that it did not have to do, but I do find it amazing that Senator Harradine has signed up to the deal and that someone like Father Frank Brennan defends it. I find quite remarkable the journey that Father Brennan has travelled in respect of this legislation. My attention has been drawn to his book entitled Finding common ground: An assessment of the basis of Aboriginal land rights. It is a book in which Father Brennan writes the first major section, which is entitled `Right reasons for Aboriginal land rights'. In that section, he writes a couple of things which I think we should reflect on at the moment. One goes to the position in which this government has put Aboriginal people. The government comes in here towards the end of this debate and claims that Aboriginal people are lucky because it has done something that it did not have to do. Father Brennan says:The cry of the alienated, frustrated and powerless, the cry for identity, for recognition and acceptance, will be amongst us for some time to come. Just for the moment it sounds in the term `land rights'.He also says in that chapter:That which was rushed through the night is unacceptable because it is not what the people wanted and nor is it what they deserve.This is not what Aboriginal Australians wanted and nor is it what they deserve. This was conceived in the darkness of the night as a secret deal.Senator Harradine can shake his head as he likes, but for the last three hours this morning, we have gone through section after section, clause after clause to show the injustice that his deal has perpetrated on indigenous Australians. We have shown the excesses that his deal has sanctified and has given approval to. This was not discussed, revealed and boasted about this week, but it is there in the detail. Section after section cuts into the rights of indigenous Australians. Why? To save a Prime Minister from a bushfire that he lit himself. Why? To save him from a hollow threat that he would call a double dissolution.This is a Prime Minister sitting on 30 to 35 per cent in all public opinion polls in all states of Australia. He says to this Senate, `Unless you accept this grubby little erosion of Aboriginal rights, I'll rush off to a double dissolution'. He does not have the guts to change his socks, let alone rush into a double dissolution, but we have acceded to him, and in a way that is totally offensive and contrary to the sorts of principles that Father Brennan stood for. He goes on to say:If special laws are to apply to these communities, they should be laws which are sought and approved by the people themselves.The people themselves were not even invited to the table. As Noel Pearson said, they were expected to wait on the woodheap outside. As we heard just a little while ago, they got the crumbs off the table and that is about it.But it does not affect just this debate. I have got a huge passion for multicultural Australia, and that is not a secret, but Father Brennan again says in this chapter:In a multicultural society, it would be tyranny for the dominant culture to dictate in its own terms what aspirations are worth protection.That is something I also agree with, and here you do have the tyranny of numbers, the tyranny of vested interests, the tyranny of this government colluding with stakeholders, putting obscene and amoral pressure on an independent senator and getting a result which really is no credit to this legislation, this process or the nation.Senator Minchin, do not come in here and say to us, `We had no obligation to afford them, through legislation, statutory access rights'—rights that you have actually eroded—because what this process is about and has been about for six years is providing an alternative to the common law processes. The stakeholders across the board do not want to be left to the common law processes. They want a process alternative which implements avenues of redress, security and certainty. It is your obligation to do what you are doing but to do it better.In terms of the crumbs, Senator Minchin talked about statutory access rights, and I believe Senator Woodley was right when he made the point about the stolen generations and protection in this particular part of the regime. Senator Minchin, can you tell us where you have left the right to negotiate to apply in respect of pastoral leases? Just to try to redress what you have said earlier in this part of the debate, can you tell the chamber before we break for lunch, firstly, where that right to negotiate is still left to apply in your legislation and, secondly, where it is left to apply in respect of pastoral leases?12:47:005096Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—That is a sudden change of subject. I thought we were talking about statutory access rights.XE4BOLKUSSenator Bolkus—I'm giving you the chance to explain it.JX4Minchin, Sen NickSenator MINCHIN—I thought you wanted to debate the right to negotiate after lunch.XE4BOLKUSSenator Bolkus—I will but I am just giving you the chance here.JX4Minchin, Sen NickSenator MINCHIN—It is terribly kind of you, Senator Bolkus, to allow me to discuss something other than the subject which you want discussed, which is statutory access rights. We are discussing that because you want that discussed, but now you say that you want to talk about the right to negotiate, which is what you want discussed after lunch. I am happy to go into a very long explanation of what the situation is with respect to the right to negotiate on pastoral leases, but you can read the explanatory memorandum as well as I can and you know exactly what is being proposed. We are going to have a long debate about it after lunch.12:47:005096Brown, Sen BobSenator BROWNQD4TASAG00—I want to talk about people who do not have statutory access rights when they should have. I want to talk about that in relation to a mining lease. We are talking about pastoral leases, but let us look at the mining lease situation in the Northern Territory. I want to talk about a vast injustice that is occurring right now while we sit here—that is, the statutory access right of the Mirrar people to walk on their own lands at Jabiluka.I ask Senator Harradine whether he raised the fact that the Mirrar people are locked out of their own lands by a mining company, the main beneficiaries of which have never been within cooee of those lands and never will be. They want to put the world's second biggest uranium mine underground, with potential milling processes on-site and with a 20-kilometre road ripping through the middle of a formerly pristine Jabiluka Valley to take those processed ores out to be exported into the world's nuclear fuel cycle.Here we have a clan of indigenous people totally opposed to what is happening on their land, but their right to walk on their land which they have exercised for thousands of years—a land in which their own hearts and souls are invested; it is part of their being—is being totally and cruelly abrogated in favour of a multinational corporation which is moving in on that land to the exclusion of these people. What are their access rights? It is all right for the noble talk we will get from Senator Harradine and Senator Minchin, but where are their access rights in this? If this government and Senator Harradine are dinkum, they should tell us what was done in these secret negotiations behind closed doors for the people of the moment who are being shut out of their lands in Kakadu.It is no good the minister putting his head down over this. The fact is that these people are being denied their fundamental rights to their land right now. In this shady, nasty process of discussion in the last couple of weeks that Senator Harradine and the government have been engaged in and which the indigenous people were locked out of, I will guarantee that no-one mentioned their plight, and do you know why? Because they do not count to either Senator Harradine or the government. What counts here is this big multinational organisation engaged in everything from the woodchipping of Tasmania's world heritage value forests through to the uranium exploitation in Kakadu. That is what the whole of this debate is really about—the resource extractors and the exploiters being given the rights that the indigenous people should have had.As I said last night, `the first shall be last and the last shall be first' is apparently the track that Senator Harradine has adopted when it comes to indigenous rights in this country. The first Australians are put last, and the last Australians—the exploiters, the people with the power, the people who want to walk over indigenous rights to make money—come first. I do not know what new devices are possible to try to explain that, but I do not think that is goodwill and, to use Senator Harradine's words, I do not think that is honourable, I do not think that is decent and I do not think that is fair. He can use those words until the cows come home, but all he is doing is devaluing the currency of them.He stood in here six months ago and used those same words for a completely different set of circumstances and a completely different range of rights for indigenous people vis-a-vis exploiters. They were the same words but applied to a different set of parameters. Since then, the stealth has occurred, the stealing of rights has occurred, but the same words get applied. It beats me. I cannot see what is honourable or honest about that.But, at the moment, the question I would like to put to the minister—and I bet he ducks it—is: what of the Mirrar people on this mining lease in Kakadu? What is in here for them that is going to guarantee their rights? Is it not true, Minister, that, if they dare set foot on their land in the Jabiluka mining lease, they will be arrested? Is it not true, Minister, that, if they stand in the way of the machinery with the current way the Northern Territory police are repressing protesters, they face two weeks minimum in gaol and up to seven years in gaol for walking on their own land? Is that not the case? I will tell you: it is. I will be interested to hear what the minister has to say about remedying this very deep wrong that has been done to one group of indigenous people and which potentially will be done to a lot more under the terms of this legislation before the next few years are through.12:54:005097Harradine, Sen BrianSenator HARRADINE6H4TASIND00—Questions have been asked of the minister, but I want to respond to a couple of things that have been mentioned before. Might I say that the last contribution by Senator Brown really displays his absolute ignorance of what we are dealing with in this chamber.QD4BROWNSenator Brown—Well, answer the questions.6H4Harradine, Sen BrianSenator HARRADINE—Senator, you have asked the minister. He will be able to answer the questions. Mr Chairman, I do apologise to the committee that I have not been present for much of the discussion this morning. The reasons for that are several, but one of those is that I have been attempting to deal with a question on behalf of one of the Aboriginal groups in respect of a very important matter.As I understand it, this morning's debate in the committee stage has revealed again a surprising misunderstanding of what has happened. In fact, the matters that we have been dealing with have shown that the government has accepted a number of my recommendations in a number of areas outside of the big four, if you like, to improve the bill. I am disappointed by Senator Bolkus quite unfairly—he used the word `gutless'—and quite gutlessly attacking in a semi-sectarian manner Father Frank Brennan's contribution to this particular area. Father Brennan was involved in this well before you were involved in it and has very substantially been involved in it for many years.XE4BOLKUSSenator Bolkus—Mr Chairman, I rise on a point of order. I find it insulting, offensive and outside the standing orders for Senator Harradine to make the accusation that I have acted in a sectarian manner. I ask him to withdraw.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Hogg)—There is no point of order. It is a debating point, not a matter for the standing orders.6H4Harradine, Sen BrianSenator HARRADINE—There have been many things said, including, might I say, by Senator Brown, so I am informed, that, for example, I was saying that this legislation is discriminatory and saying that I had admitted that it was discriminatory. I said that, yes, it is discriminatory in some respects in favour of indigenous people. Get those things right. I will deal with the outburst of Senator Bolkus in due course. If he wants to lower the level of the debate and refuse to look at the questions themselves, that is his problem.As to the statutory access, let me make it perfectly clear what the situation is. Everyone around this chamber knows that the statutory access regime is, and has been, inadequate all along the line. Its inadequacy relates to the fact that it confers rights only on individuals and not on the community. Let us give the government credit. The government agreed with me that common law native title rights should be enforced, and that is what they are agreeing on in amendment H74. Under those circumstances, I was not prepared to press my minor improvement of the government's already inadequate statutory access scheme.The government agreed that there should be protection of common law rights by allowing their enforcement in proceedings and preventing their exclusion, as was originally proposed in section 44C. So I am prepared to allow the statutory access to remain in place in those terms. It is better to ensure that common law rights are enforceable rather than to try to improve an inadequate statutory scheme. The proceedings for determination are already on foot in the Federal Court. It is not unreasonable to require enforcement proceedings to be brought within the existing proceedings where all the relevant material has already been filed, rather than having multiple proceedings in other courts.So, in fact, those victims of the locked gate syndrome are able to seek access through that means. Remember, they have already made application, and it is already on foot before the Federal Court. Added to that, the government had agreed that, in respect of the registration test, the stolen generation and the victims of the locked gate syndrome should be included. I congratulate the government for that.Progress reported.Sitting suspended from 1.00 p.m. to 2.00 p.m. Questions Without Notice509950995099Faulkner, Sen JohnSenator FAULKNER5K4NSWALP00—My question is directed to the Minister for Resources and Energy. Can the minister confirm that his private company, Investment Management Pty Ltd—in which he owned eight of the nine shares—purchased 2,600 Telstra shares on 25 November 1997? Can the minister confirm that these were registered to the W.R. Parer Family Trust on 27 November 1997? How does the minister reconcile this purchase of shares given the Prime Minister's explicit prohibition on the purchase of shares within 90 days of their issue? Is it the case that the minister did not understand the Prime Minister's directive; is it the case that the minister did not care about the Prime Minister's directive; or is the minister asking us to believe, yet again, that he did not receive the Prime Minister's directive?LD4ALSTONSenator Alston—Madam President, I raise a point of order. It sounds pretty much like a hypothetical to me. Firstly, unless Senator Faulkner has a copy of a leaked letter, he is simply asserting what the Prime Minister might or might not have said. On that basis, it falls into the category of a number of questions that have been asked by the opposition in recent times. I think it is about time that they were required to indicate whether there is a factual basis for questions before they simply put forward propositions as though they are true; in other words, a self-serving assertion which a minister is then asked to respond to. That is not the proper basis for a question. It is very misleading and ought to be ruled out of order.5K4FAULKNER Senator Faulkner—Briefly on the point of order, Madam President: we have come to expect from Senator Alston this completely dodgy point of order being taken about hypothetical questions. There were four specific questions that I asked directly to Senator Parer. You have consistently ruled Senator Alston out of order. It is just an attempt to cover up and protect his colleagues, and I would ask you to rule him out of order again.10000PRESIDENTThe PRESIDENT—There were four parts to the question, and I think the first two were questions that Senator Parer may have an answer to and wish to give. As to the balance of it, I have no idea whether or not what is proposed is factual. Senator Parer may or may not know and will deal with it accordingly.5099Parer, Sen WarwickSenator PARERKI4QLDLPResources and Energy10—The Prime Minister did write to ministers in August 1997 pointing out that ministers directly involved in the Telstra sale should not buy shares in Telstra at all. Other ministers were advised not to buy shares for 90 days after the first day of trading. Spouses and children could buy shares at any time, provided they were acting independently and not merely as a proxy for the minister. Senator Ray raised this yesterday as a lead-up to this particular question and trundled around the press gallery doing what he knows best—repackaging what is already known.The facts are that the ownership of Telstra shares by the 28-year-old family trust was fully disclosed to the Senate in March. In fact, Senator Faulkner referred to them on 1 April this year. My wife, as I have said many times in this place, has been the manager of that trust and has been for many years. Acting independently of me, she applied for shares on the basis that I was not receiving, and had not received, any income from the trust and was not a beneficiary of the trust since I was appointed as a minister. The only people to have received benefit from the trust since that time have been my wife and the adult children.Honourable senators interjecting—10000PRESIDENTThe PRESIDENT—Order! Just a moment, Senator Parer. Senator Alston and Senator Ray can deal with this matter at another time. You should not be shouting across the chamber while Senator Parer is answering.KI4Senator PARER—The Prime Minister's restrictions on bona fide ownership of Telstra shares did not apply to a spouse or adult family members, and the purchase was therefore in accordance with the guidelines.I did not apply for any shares in Telstra in accordance with the Prime Minister's letter, neither have I subsequently purchased any Telstra shares. Since 26 March, neither my wife nor I have been directors or secretary of the trust company, nor are we beneficiaries under this trust. I might say that my wife did not have to do this but elected to do so. The trust company and the trust are entirely controlled by adult children.This is no big deal. The Labor Party would like it to be so. It is an old Labor routine. The Labor Party would be better off formulating policies than trawling around looking for mud to throw. There is not any. So my advice to Senator Faulkner is to stop wasting his time and start addressing the issues of real importance to Australia and Australians. For starters, how about having a go at formulating some policies?5100Faulkner, Sen JohnSenator FAULKNER5K4NSWALP00—Madam President, I ask a supplementary question. Can the minister confirm that this prohibition was imposed by the Prime Minister in order to reassure everyone that no minister would benefit from a crucial government decision? I might ask also whether making a few thousand dollars is more important to the minister than the need to comply with the Prime Minister's ministerial standards.5100Parer, Sen WarwickSenator PARERKI4QLDLPResources and Energy10—That is correct. And I might say that personally I have not benefited in any way whatsoever from the purchase of those shares.51005100Chapman, Sen GrantSenator CHAPMANFF4SALP10—My question is directed to the Leader of the Government in the Senate. I put it to the minister that all political parties have a responsibility to provide detailed, costed policies prior to the next election. Will the minister outline the government's economic policies in achieving record low interest rates, record low inflation and a massive reduction in Labor's debt? Is the minister aware of any alternative policies to continue the government's responsible management of the Australian economy?5100Hill, Sen RobertSenator HILLBH4SALPEnvironment10—Yes, the contrast is dramatic between the sound economic management of the Howard government and the appalling economic mess that we inherited when we came to government. Just look at interest rates that are so important to all Australians.QD4BROWNSenator Brown—Madam President, I raise a point of order. I think a couple of journalists might just have been asked to leave the gallery because they were not wearing jackets. Is there a rule for male journalists that does not apply to female journalists; and, if so, would you look at it please?10000PRESIDENTThe PRESIDENT—Yes.BH4Senator HILL—It won't interest Senator Brown, but we are talking about the economic welfare of the country and all Australians. We are comparing interest rates under Labor with that of the coalition government. Under Labor, home interest rates got to 17 per cent compared with 6.7 per cent for the coalition. Under Labor, small business interest rates were 20 per cent compared with about seven per cent for the Howard government. As to debt, we had a budget deficit of $10.3 billion under Labor compared with a surplus of $2.7 billion under the coalition. Under Labor, Commonwealth debt totalled around $100 billion, with an additional $70 billion of debt in its last five years of government, compared with the coalition government actually repaying debt. The debt to GDP ratio will be 7.5 per cent in the year 2000 compared with Labor's 20 per cent. Turning to jobs, you will remember unemployed rising to one million in this country under Labor; under the coalition that figure is down to 8.1 per cent.That is the record to be compared. But the voters will also be asking, `What of the future?' They will be asking of Labor—particularly against the background of its appalling record—`What of the future?' Of course, they had the right, and still have the right, to expect clear policies from the Labor Party. Last year, Mr Beazley, the Leader of the Opposition said:The next phase of Labor's journey back into government is deliberation on detailed, properly costed election promises.RF4COOKSenator Cook—Yes.BH4Senator HILL—A reasonable statement, Senator Cook; you agree with it. But by this year, he was starting to wriggle out of that commitment. His next statement was:We are going to have to, I think, in this election campaign give an indication of our intentions as opposed to necessarily a final statement.So clear policies have been reduced to an indication. But most recently he has gone a step further. In June of this year, Mr Beazley said:. . . but what I am going to do when I actually get into power is put forward a set of policies which I believe the Australian people will rally to . . . Last year he said that he had policies, that he was going to put down clear and detailed policies. Then he said he was going to put down a framework for policies. Now he says that when he gets into government he will show the Australian people his policies.Last year, Mr Evans, who is the shadow Treasurer—although some might fail to understand that—said, `We have actually been up to our armpits in policy formulation.' They were up to their armpits in policy formulation last year, but now Mr Beazley says, `You are not going to get it until after the election.' Why? One wonders if we got a hint last weekend from shadow Treasurer Evans when he talked about the wholesale sales tax. He said, `Well, some might go up and some might come down.' But we know that with the Labor Party taxes always go up. After the 1993 election, whatever they promised, taxes went up. After 1995, taxes went up again. What will the people understand from the failure of Mr Beazley to come clean on policy? They will expect the worst, and they will have every right to, because that has been the history, the legacy, of Labor after 13 years in government: high interest rates, high taxation and high debt. If they get back into office, the Australian people will get it again.5101Chapman, Sen GrantSenator CHAPMANFF4SALP10—Madam President, I ask a supplementary question. Is the minister aware of any advice regarding the importance of outlining in detail various policies? Does the government agree with that advice?5101Hill, Sen RobertSenator HILLBH4SALPEnvironment10—I am aware of some advice. Senator Cook will remember advice that was received by an interested commentator in February 1995. That commentator said:Tell us how you are going to pay for all these promises . . . Tell us what you are going to do by way of outlays. Tell us what you are going to do by way of tax revenue increases.. . . . . . . . .. . .. if the opposition thinks it is going to get away with having it both ways forever—making all these promises and not explaining to the electorate how they are going to be paid, whether by way of other outlay reductions or by way of tax increases—it has got another think coming.That was Gareth Evans in 1995. If it was good enough for the Liberal Party to come clean on policies, it is now good enough for the Labor Party to do the same. It is time the Labor Party came clean on policies. Tell us what your tax policy is, and the people will have better options at the next election.51015101Cook, Sen PeterSenator COOKRF4WAALP00—My question is to Senator Parer, the Minister for Resources and Energy. Can the minister now confirm that other companies closely associated with him bought Telstra shares during the initial public offer? Specifically, will the minister acknowledge that the following purchases by his family companies breach the intent of the Prime Minister's prohibition: Gashbah Pty Ltd, 3,000 Telstra shares; Spanlex Pty Ltd for the Rutherglen Superannuation Fund, 5,000 Telstra shares; and Spanlex Pty Ltd for the Warwick R. Parer No. 2 Account, 2,200 Telstra shares? Can the minister now confirm that at the time of the Telstra float, he and his spouse, through various entities, purchased 15,000 Telstra shares, not including the further 12,800 shares purchased in the names of his immediate family?5101Parer, Sen WarwickSenator PARERKI4QLDLPResources and Energy10—I think I explained earlier that all my family affairs have in fact been managed by my wife, going back many years. She made an independent decision that there was no beneficial interest accruing to me because I received no income and have not been a nominated beneficiary since I have been a minister.This is really an intrusion, I would have to say, Senator. When you talk about Rutherglen, that is the private superannuation company that my wife has had for quite a long time. If you are going to go into the depths—and it would be, I know, low for the Labor Party—to go down the track of attacking the independence of wives of senators and members, you have reached a new low.5102Cook, Sen PeterSenator COOKRF4WAALP00—Madam President, I ask a supplementary question. I remind the minister that he is a public office holder and it is vital that his personal interests not be entangled with his public duties. Can the minister confirm that the Telstra Corporation share register held by Coopers and Lybrand shows that at least 24 parcels of Telstra shares were purchased by members of his immediate family or by companies or entities closely associated with him?5102Parer, Sen WarwickSenator PARERKI4QLDLPResources and Energy10—They could have been; I wouldn't know. I have seven adult children and what their affairs are is entirely up to them. It is the same for my wife or anyone else's wife.51025102McGauran, Sen JulianSenator McGAURANWH4VICNP10—My question is to the Minister for Social Security. Will the minister outline the achievements of the coalition government in the area of social security? Is the minister aware of the alternative policies and implications if they were to be implemented?5102Newman, Sen JocelynSenator NEWMANBE4TASLPSocial Security10—I thank Senator McGauran for the question. After two years and four months we have made enormous strides in reforms in the social security system, and all Australians, I know, will be glad. When you think of the family tax initiative, which was a massive expenditure in the first year to help battling families; when you think of the youth allowance, which treats students more fairly than they ever have been in the past; when you think of the measures for retirees, for pensioners, for carers and for the disabled—in every area of social security policy, this government has produced important reforms.The profoundly disabled children's measure was contested by the other parties in the Senate until they saw reason. The jobs and education and training program has been extended to partnered parents as well as to lone parents; the increase in pensions to 25 per cent of male total average weekly earnings has been enshrined in legislation—never before done; there is retirement assistance for farmers on non-viable farms. I could go on and on. We did a lot; we have done a lot.But what is the situation with the opposition? All we have seen from the Labor Party is an indication of a wish list of policies that we can only glean from the amendments that they try to pass in this place, because they are bereft of a policy on this area. They bring out wishy-washy statements—it would appear they are promises—by people who are in a position to make promises, such as Cheryl Kernot, Jenny Macklin and Gareth Evans, and any other Labor spokesperson. They are not policies; they are promises on the run to the audience that suits them at the time.Of course, the bulk of Labor's contribution to social policy debate is scare campaigns. We have seen it constantly in the last few days about the youth allowance. Yesterday, we had Senator Carr in here giving us what he purports to be factual information—once again not factual information, Senator Carr. The family concerned are getting an allowance—10000PRESIDENTThe PRESIDENT—Senator, your answers should be directed to the chair, not directly to the senator.BE4Senator NEWMAN—I am sorry, Madam President. Yesterday in the Senate, Senator Carr misrepresented the situation for a young person, which is why you would take with scepticism any claims made by a Labor spokesman. That is why the public should not take notice of them.Just think of the proposed amendments that Labor made to the 1997 social security budget and other measures bill—$36 million extra per annum. Then it wants a $40 million amendment to the payments processing bill. In 1996 and 1997 the opposition parties opposed a host of measures, which would have cost hundreds of millions of dollars over a four-year period.They have no policy, but they try to put things in that they do not have to pay for because they will never be in government. There is the `Cheryl Kernot clause' for the baby-boomers; winding back the superannuation as part of the income test—a fair measure that treats all savings the same, but it is a measure that the Labor Party introduced that subsidises the superannuation-rich at the expense of everybody else. Cheryl Kernot wants to put it back.They are just a taste of the things about which Labor is making promises on the run—not policy on the run, because we have not seen a sign of it yet. These proposals of Labor are simply designed to focus on any particular interest group they are speaking to at the time. When are we going to see it in writing? When are we going to see properly costed policies?The biggest thing of all, of course, as Senator Patterson would well know, is the Labor proposal to increase all allowances to 25 per cent of male total average weekly earnings. What is the cost to the taxpayer of that one? That is only $4.35 billion over four years—and I said billion, not million. (Time expired)51035103Ray, Sen RobertSenator ROBERT RAYUI4VICALP00—My question is to Senator Parer, the Minister for Resources and Energy. Can the minister advise why in his letter to the Prime Minister, tabled in this place on 23 March, he indicated that his spouse did own 2,200 Telstra shares, but he failed to mention that IMPL, of which he was chairman and controlled eight of the nine shares at the time, had purchased 2,600 Telstra shares? Why didn't he declare that? In his declaration to the Prime Minister, which he was required to make, did the minister indicate to the Prime Minister the Telstra shareholdings in IMPL, Gashbah Pty Ltd, the Rutherglen Superannuation Fund, and the Warwick R. Parer Family Trust No. 2 account? If the minister did this, did he get a letter back from the Secretary to the Department of the Prime Minister and Cabinet indicating that those affairs were in order and in compliance with the Prime Minister's directive on these matters?5103Parer, Sen WarwickSenator PARERKI4QLDLPResources and Energy10—Senator Ray will be perfectly aware that I made full disclosure to the Senate in March this year of all holdings. He would also know that when one makes a declaration to the Prime Minister it includes a lot more detail than is required in the Senate declarations. All I can say is that full disclosure was made to the Prime Minister in accordance with his requirements.5103Ray, Sen RobertSenator ROBERT RAYUI4VICALP00—Madam President, I ask a supplementary question. Are you saying, Minister, that you in fact declared to the Prime Minister those four particular parcels that I mentioned in full detail? We do not require the detail obviously, but did you actually do that? Did you get a letter back from Mr Max Moore-Wilton saying that it was all right? By the way, Minister, when you declared these matters—you said fully—to the Senate, did you just declare the IMPL holding, or did you declare the holdings in Spanlex, Gashbah and the other accounts?10000PRESIDENTThe PRESIDENT—I point out to Senator Ray that you directed all of that directly across to the minister, and I think you are perfectly aware that you ought not to do it in that fashion.LD4ALSTONSenator Alston—Madam President, I rise on a point of order. Senator Ray knows better than anyone else that no-one is required to disclose the detail of what is contained in private correspondence to the Prime Minister, and yet here he is—his top gear, unctuous self—saying, `All I really want is for you to confirm certain matters,' and then he spells them out in detail. In other words, he is asking Senator Parer to identify precisely what he told the Prime Minister, and Senator Parer is not required to do that. Senator Ray knows it; he is simply trying to pretend that somehow he is not wanting the detail. All that Senator Parer needs to be asked in this chamber is whether he has complied with the existing requirements. He has already said that he has, and there is absolutely no basis at all for Senator Ray seeking further and better particulars—trawling and fishing in the bottom of the gutter—trying to somehow distract attention from Labor's total and absolute failure to address policy issues.10000PRESIDENTThe PRESIDENT—There is no point of order. Senator Parer is able to answer the question and will do so.5103Parer, Sen WarwickSenator PARERKI4QLDLPResources and Energy10—Madam President, I made full disclosure to the Senate, as did my wife in a private disclosure that is required. I might also point out that to verify that, I got the accountants who have been looking after our affairs for many a long year to put a piece of paper together because I was concerned about making sure that there was full disclosure.UI4RAYSenator Robert Ray—You didn't table that in your letter to the Senate, did you?KI4Senator PARER—Yes, it is there.51045104Stott Despoja, Sen NatashaSenator STOTT DESPOJA3I6SAAD00—My question is addressed to the Minister for Social Security. I am wondering if the minister is aware of a television advertisement in the government's $3.8 million promotional campaign for the common youth allowance which suggests that a young woman living away from home with members of her extended family will be eligible for living away from home allowance and rent assistance. Isn't it the case, though, according to the DSS guidelines, that such allowance is only available in very limited circumstances—for students in the most remote areas where no school is located or for students with disabilities requiring special facilities? Isn't it true that it is not available when a student chooses to remain at their current school, so as not to disturb his or her studies, as depicted in the advertisement? Rather than giving the information that young people really need as opposed to what Senator Tambling described as their rights and responsibilities in the new system, isn't it the government that is perpetuating these fallacies about the common youth allowance?5104Newman, Sen JocelynSenator NEWMANBE4TASLPSocial Security10—I would like to answer Senator Stott Despoja by asking her when is she going to acknowledge how important this is for students; when is she going to acknowledge what a massive increase this will mean for students, whether they are from country districts, from regional Australia or whether they are city kids. The grudging and carping criticism that comes from an ideological position that we have been hearing from opposition parties—8U4LEESSenator Lees—Madam President, I raise a point of order as to relevance. This was a specific question on truth in advertising and I ask the minister to answer the question, please. 10000PRESIDENTThe PRESIDENT—I would draw the minister's attention to the question but she has nearly 3½ minutes left to deal with it.BE4Senator NEWMAN—I have plenty more to say, Senator Lees. As you would realise, Madam President, this is an enormous new policy. It has huge ramifications in that it has put two policy areas together, it has put five payments into one and it has reduced the 13 rates of payment. But in doing that—3I6STOTT DESPOJASenator Stott Despoja—How do they get living away from home allowance? Answer the question.BE4Senator NEWMAN—Madam President, we are still getting shouting from the fairies at the bottom of the garden.N26ABETZSenator Abetz—Madam President, I raise a point of order. Senator Stott Despoja asked a question of the minister, and even if Senator Stott Despoja is not interested in the answer, I am. I would ask you to require Senator Stott Despoja to desist from continually interjecting.10000PRESIDENTThe PRESIDENT—If she is interjecting, I didn't hear it because of other interjections much nearer to me. It would be better if all senators abide by the standing orders, and then everyone could hear the answer.BE4Senator NEWMAN—Senator Stott Despoja and her friends in the National Union of Students have consistently refused to recognise what a major social policy reform this is and of what enormous benefit it is to students. Having said that, it is a huge undertaking which has brought these two payments together and aligned the entitlements for two quite disparate payments. It means that young people, whether they are students or unemployed, are treated the same. There is not better treatment of the unemployed than the students. It brings the students up to the unemployed level.Inevitably, even if we had spent $50 million on advertising, you could not have covered all the intricacies of recognising the needs of young people in their different circumstances. If Senator Stott Despoja would like the government to spend more money on advertising the youth allowance in even greater detail, I would be very happy to consider it because I think it is something which needs to go out to all of Australia. I am proud of this measure and I would hope that students get the correct information and are not party to a scare campaign from the opposition—I mentioned earlier Senator Carr's efforts yesterday, and we have had other examples on the media.If young people and their families have an opportunity to get the facts, they will know how beneficial this is. I would be very happy to have Senator Stott Despoja endorse increased expenditure because it is such a big measure, and it does need to cover every eventuality that young people face, whether they are sick, whether they are studying, whether they are part-time job searching and part-time studying or whether they are in training. There are lots of exemptions for young people in certain circumstances. It depends on their age and whether they live away from home—3I6STOTT DESPOJASenator Stott Despoja—Madam President, I raise a point of order as to relevance. I asked a specific question about whether a particular student would be entitled to the living away from home allowance and rent assistance. This is not a hypothetical; it is according to the government's own advertising campaign. I have waited for a number of minutes and have given the minister an opportunity to answer the question. She has not even mentioned living away from home allowance in the context of answering the question.10000PRESIDENTThe PRESIDENT—I cannot direct the minister as to how she answers, but she is certainly dealing with the topic that was raised by the senator in her question.BE4Senator NEWMAN—The fact is, as Senator Stott Despoja well knows, that there are lots of circumstances in social security payments where the Centrelink officers are required under legislation to exercise discretion, and they operate under guidelines set down by the Secretary of the Department of Social Security. She is referring now to an area where there is a requirement for discretion in the implementation of those guidelines.Senator Carr interjecting—BE4Senator NEWMAN—Despite the noise and the bellowing from Senator Carr—who cannot tell the truth in the Senate—that is the answer that Senator Stott Despoja needs to have. If she wants more information, we would be very happy to brief her. I have offered her that sort of briefing before but I have not noticed that she is so keen to get into the fine print and look at all the detail.5105Stott Despoja, Sen NatashaSenator STOTT DESPOJA3I6SAAD00—Madam President, I ask a supplementary question, not that much came out of that question. First of all, does the minister acknowledge that my office has taken advantage of briefings? Does the minister stand by this advertisement as `fulfilling the DSS guidelines'? Does the minister accept that truth in advertising is important? Does she stand by the information, the so-called fact, contained in the common youth allowance advertisement which implies that students in the situation outlined by the father who was talking about his daughter would be entitled to living away from home allowance and rent assistance? Does the minister stand by her advertisement?5105Newman, Sen JocelynSenator NEWMANBE4TASLPSocial Security10—Perhaps Senator Stott Despoja does not understand the way these advertising campaigns are developed. They are certainly not developed by the minister.Opposition senators interjecting—10000PRESIDENTThe PRESIDENT—Order! There are too many interjections.BE4Senator NEWMAN—The quickest way to answer Senator Stott Despoja is to say that this advertising was developed by and for Centrelink, which is the organisation entrusted under the legislation to administer the legislation. I would therefore be totally reliant upon their accurate reflection in the advertising.51055105Evans, Sen ChrisSenator CHRIS EVANSAX5WAALP00—My question is directed to the Minister for Resources and Energy. Does the minister recall including in his declaration of pecuniary interests his holding of shares in the diversified investment company Argo Investments Ltd? Is the minister aware that the 1997 annual report for Argo Investments Ltd indicates at page 4 that one of the largest investments made by Argo is in BHP, with $24.1 million worth of shares? Is the minister further aware that Argo Investments also has substantial holdings in the resources companies Ashton Mining, CSR, Renison Gold, North Ltd, Rio Tinto, Santos and Western Mining? Given that the minister felt it necessary to sell his own CSR shares in October last year because that company held an interest in the mining company Nabalco, why has he not felt it necessary to divest his Argo Investments shares for the very same reason?5106Parer, Sen WarwickSenator PARERKI4QLDLPResources and Energy10—Senator Evans is quite right. On my being appointed we got rid of, or my wife got rid of, all shares in regard to direct involvement in the mining industry. Advice was sought at the time, and it was pointed out that this is basically an investment company which is equivalent to what you would almost call a blind trust. You have no control over it whatsoever, no interest in it whatsoever. You can have no influence on it whatsoever in any shape or form. For that reason, it was agreed that that sort of investment was satisfactory in accordance with the guidelines.I might also say that at the time advice was sought, similar advice was received in respect of a company called Australia Foundation, which has a broad portfolio of shares over which there is no interest. I do not know personally what particular investments those companies have. It is a blind investment. It is up to them as to how they make those investments.5106Evans, Sen ChrisSenator CHRIS EVANSAX5WAALP00—Madam President, I ask a supplementary question. I thank the minister for his answer, but are you aware that the 1997 annual report of Argo Investments lists at page 31 some 143,000 shares in the company Energy Resources of Australia Ltd? Can the minister assure the Senate that he has at no time since becoming minister made any decision relating to Energy Resources of Australia? I remind the minister that the ERA is the operator of the Jabiluka uranium mine. If the minister cannot give such an assurance, and given the precedent set by Senator Gibson, what action does he now propose to take?LD4ALSTONSenator Alston—Madam President, I rise on a point of order.UI4RAYSenator Robert Ray—You got rid of your shares in a big hurry in April.EP5FERGUSONSenator Ferguson—What have you done with your money?LD4ALSTONSenator Alston—I think we would like to know what you have done with all your investments after 10 years as a minister, too. There is not much to show for it, is there? Madam President, the only possible relevance of that question asked by Senator Evans is whether or not Senator Parer had any capacity to control or influence the decision making process of that company. What he has conceded is that at one point in the year—in other words, an annual report snapshot—it might be possible to determine what shares were owned by an investment company. That report itself comes out long after the period to which it refers. There can be no possible basis for suggesting that Senator Parer would be aware of the holdings of that company at any one point in time relevant to the decision making process. There is no possible basis for suggesting that he could affect any decision made. It is therefore utterly irrelevant.10000PRESIDENTThe PRESIDENT—There is no point of order.5K4FAULKNER Senator Faulkner—Madam President, I rise on a further point of order, which is a point of order. Senator Alston is deliberately using the tactic of taking non-points of order through the device of points of order during question time to attempt to give Senator Parer some cover on questions properly directed to him. The issues relating to the standing orders or procedural or process issues before the Senate are not even discussed or canvassed at all in any of these phoney points of order that Senator Alston is taking as a device to cover up for Senator Parer. I ask you, Madam President, if he does it again to discipline him.10000PRESIDENTThe PRESIDENT—There is no point of order.5106Parer, Sen WarwickSenator PARERKI4QLDLPResources and Energy10—The groups to which Senator Evans referred have a portfolio of stocks. If he wants to go down that track it would mean that no-one in this place can have an investment in a superannuation company or in any financial institution, because people like AMP, people like—5K4FAULKNER Senator Faulkner—Why did you sell CSR?KI4Senator PARER—Because they were a direct investment, Senator. That is why. Can't you understand? You are as thick as a brick.5K4FAULKNER Senator Faulkner—What about ERA?10000PRESIDENTThe PRESIDENT—Senator Faulkner, one of your senators has asked a question, and he should be able to hear the answer.KI4Senator PARER—It means that no-one here can have a superannuation fund or an insurance policy with a company, whether it be AMP, National Mutual or any other organisation or financial institution of that type, because they do have broad portfolios of investments, the same as this particular group. As I mentioned earlier, this was the sort of advice that I sought, in fact I got my wife to seek, before she agreed to make those investments.51075107Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—My question is to the Minister for the Environment. Given the substantial amount of work being carried out by the World Trade Organisation's Committee on Trade and Environment in reviewing the relationship of multilateral environment agreements to the World Trade Organisation and its annexed agreements, can the minister advise the Senate: to what extent is the minister and/or his department involved in attending meetings of the Committee on Trade and Environment; what meetings has he or representatives of his department attended? What level of advice does the minister and/or his department give to the Department of Foreign Affairs and Trade prior to meetings of the Committee on Trade and Environment; and what level of consultation does he or his department have with environment groups and other relevant stakeholders prior to the meetings of the Committee on Trade and Environment?5107Hill, Sen RobertSenator HILLBH4SALPEnvironment10—I have not attended those meetings. They are attended by the Minister for Trade or his representative. We are aware of the issues, and we do provide advice through the internal systems of government. But it has not gone beyond that.5107Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Madam President, I ask a supplementary question. Given the paucity of the minister's response, what action does the minister intend taking to rectify this low level of participation by him, his department and other major stakeholders at meetings of the Committee on Trade and Environment? Has the minister or his department approached the Department of Foreign Affairs and Trade to have environment groups and other relevant stakeholders attend meetings of the Committee on Trade and Environment as part of the Australian government delegation as observers—as potentially he would do, I guess, for industry stakeholders?5107Hill, Sen RobertSenator HILLBH4SALPEnvironment10—This is principally a trade negotiation. Certainly, through this committee, it does look at some issues where environmental consequences might have some effect upon trade determinations. What we do is seek to ensure that the environmental consequences are properly understood by those who are negotiating on behalf of Australia.51075107Faulkner, Sen JohnSenator FAULKNER5K4NSWALP00—My question is directed to the Minister for Resources and Energy. Can the minister confirm the transfer of 2,600 Telstra shares from IMPL to the recently established company White Rhinos Pty Ltd on 25 June 1998? Can the minister confirm that the shares held by Investment Management Pty Ltd in Campbells, Woolworths, Simsmetal, Argo Investments, Australian Provincial Newspapers, Bank of Queensland and Buderim Ginger were also transferred to White Rhinos Pty Ltd; and, if not, where were they transferred to? Can the minister outline what, if anything, in the articles of association of White Rhinos prevents the beneficial ownership of any or all of these shareholdings reverting to him immediately on his ceasing to hold ministerial office?5107Parer, Sen WarwickSenator PARERKI4QLDLPResources and Energy10—The shares did not transfer; they still remain in the family trust. What did change was the management company. The other day Senator Cook questioned in here whether, in fact, Investment Management still exists. I pointed out to him that it was shell company which was in the process of being deregistered.Where it sits at the moment, neither my wife nor I are directors of White Rhinos Pty Ltd, which is the new—that is, in fact, now controlled by adult children. Neither are we beneficiaries under the trust, and neither can we be beneficiaries under the trust.5108Faulkner, Sen JohnSenator FAULKNER5K4NSWALP00—Madam President, I ask a supplementary question. In the light of the minister's answer to my question, I ask the minister: how does the transfer of assets to White Rhinos Pty Ltd comply with the Prime Minister's guide to the key elements of ministerial responsibility, which states that `the transfer of interests to a family member, or to a nominee or trust, is not an acceptable form of divestment'?5108Parer, Sen WarwickSenator PARERKI4QLDLPResources and Energy10—Senator Faulkner really is a bit slow, because my recollection is that the Prime Minister himself answered that question by stating that that did not refer to adult children who are totally independent.51085108Gibson, Sen BrianSenator GIBSONBX5TASLP10—My question is addressed to the Minister for Communications, the Information Economy and the Arts. All political parties have a public responsibility to provide detailed policies prior to the next federal election. What steps has the coalition government taken to clearly enunciate its policies in the vital area of communications? Is the minister aware of any alternative approaches; and, if he is, do they commend themselves to the government? If not, why not?5108Alston, Sen RichardSenator ALSTONLD4VICLPCommunications, the Information Economy and the Arts10—Yes, I think Senator Gibson is absolutely right—that the Australian public would expect nothing less and they will be looking, no doubt, very carefully to see what is on offer in the lead-up to the next election. But I have to say that they must be bitterly disappointed today to see yet again the time of this chamber occupied with gutter crawling of the most sleaziest kind with the opposition simply neglecting, once again, opportunities to put forward any positive policy alternatives.We are about to debate the Telstra bill—I do not want to go into the details of that— and, quite clearly, that spells out very specifically a number of policy initiatives that we are taking, how the structure of that sale would occur, and what safeguards are built into the process. Of course, over the last couple of years we have introduced a number of historic new initiatives—customer service guarantees, the ISDN initiatives. There is plenty for consumers in our approach to these issues.But what do we have from Labor to date? Go back to the Hobart document. About the only thing in it of any substance was the commitment to the unions that `Labor opposes the sale of Telstra and will not sell any further portion'. We know how expendable that is because Senator Schacht has been out there recently saying that they would only keep it in majority control.But, if you look at the rest of that document, Madam President, it is full of blitheringly trite statements, like `Labor supports the right of all Australians to have equitable access to a modern telecommunications system' and `Labor supports a national telecommunications system which avoids, wherever possible, unnecessary duplication' and `Labor supports a competitive regime'. Of course they do. You introduced it, you got the NCC off the ground, so it is your initiative. There is nothing else in that document that could remotely be described as a policy alternative.What I think the Australian public want to know is: why isn't the Labor Party interested in, at the very least, giving guarantees to retain customer service guarantees, price caps and untimed local calls? Why can't you even bring yourself to commit to those sorts of initiatives?What about the regional telecommunications infrastructure fund? Are you going to wind that up halfway through? You have said nothing about it to date. What about the mess that you created in the phase-out of the analog mobile telephone network? Are you going to do anything about it? Why will you not even refer to it in your document? The pastoral call rebate, which we introduced: are you going to retain that? There is not a word of it in this document.There are so many things in our policy which are good for consumers. There is absolutely nothing in this document apart from a blank cheque, apart from a highly expendable commitment to the trade union movement. As for the rest of it, it is, `Once we get into government, we will tell you what we are going to do.' We remember 1993. We remember the l-a-w, law tax cuts. We remember what happened. You welched on the biggest commitment in history. What did you do instead? You introduced additional increases to the wholesale sales tax of almost $14 billion. It was the greatest treachery in political history.There is one thing that ought to be abundantly clear: it is about time the Labor Party came clean. They cannot be believed on a number of these issues, certainly on tax reform. Why will they not at the very least put out a document that at least maintains the status quo? I know Senator Schacht spent most of Christmas reading the One Minute Manager. He thought he could apply that to telecommunications policy, so he came up with a five-minute document. But, even if you have not got any policy thoughts or any new initiatives in your mind, why can't you at least lock into the status quo? Why can't you assure people that they will not get timed local calls? Why can't you assure them they will get customer protections? Why can't you think of consumers at all, because you have not to date? (Time expired)51095109Cook, Sen PeterSenator COOKRF4WAALP00—My question is directed to the Minister for Resources and Energy. Will the minister now come clean to the Senate and confirm that his 16 C-class shares—Honourable senators interjecting—10000PRESIDENTThe PRESIDENT—Order! Senator Parer is entitled to hear the question.RF4Senator COOK—Will the minister now come clean to the Senate and confirm that his 16 C-class shares in QCMM were transferred to White Rhinos Pty Ltd? If this is not the case, to whom were they transferred and when? Or has the minister taken no action on this blatant conflict of interest with his ministerial responsibilities, despite numerous undertakings to do so?5109Parer, Sen WarwickSenator PARERKI4QLDLPResources and Energy10—I know Senator Cook runs off talking to accountants around town because he does not understand business. I think he showed that very clearly when he was a minister in government, when you look at the disasters that occurred over 13 years. Who can forget the famous R&D syndication program?Opposition senators interjecting—10000PRESIDENTThe PRESIDENT—Order! The behaviour in the chamber is totally unacceptable and in breach of the standing orders. I would ask senators to observe them.KI4Senator PARER—If Senator Cook had listened to the last question I answered on this issue, he would know that the family trust, which has been in existence for 28 years, remains intact. The only thing that happened is that Investment Management Pty Ltd, which was the manager of the trust, was actually removed as manager of the trust and the new trustee company was formed, of which, as I pointed out earlier, neither my wife nor I have any interests either as a director—4J4SCHACHTSenator Schacht—Why don't you call it white elephant, rather than white rhino, Warwick?KI4Senator PARER—That is a good question. I will answer that after question time if you like. As I mentioned in around March last year, what it did was legally put into effect what in fact had been happening for many years in respect of the beneficiaries of the trust; being—as was the intent right back in 1970—for the benefit of the children.5109Cook, Sen PeterSenator COOKRF4WAALP00—Madam President, I ask a supplementary question. Now that it has been revealed that White Rhinos Pty Ltd is the minister's pseudo-divestment vehicle, does the minister still claim that he complied with the ministerial code of conduct by transferring his coal shares to that family company? Does the minister deny that he remains in a position to regain control of those coal company assets within minutes of ceasing to be a minister?UW4CRANESenator Crane—Madam President, I raise a point of order. Under standing orders, a supplementary question has to relate to the answer that has been given. Quite clearly, the question is not a supplementary because Senator Cook began his question with `now it has been revealed'. Senator Parer revealed nothing of the sort. It must be ruled out of order because it cannot be a supplementary to the original question.10000PRESIDENTThe PRESIDENT—It is a very tenuous connection. If Senator Parer has anything he wants to say, he may do so.5110Parer, Sen WarwickSenator PARERKI4QLDLPResources and Energy10—Madam President, I will help to educate Senator Cook. All assets which are part of the family trust, as I said going back many years, including real estate, are now under the control of White Rhinos. As regards to `whether you can take control', the answer to that is really no. It is under the control of seven adult children. What they do down the track is entirely up to them. But I remind Senator Cook that, when you think of the reason trusts are set up in the first place, it is probably worth quoting Keynes: in the long run we'll all be dead.51105110Allison, Sen LynSenator ALLISON1M6VICAD00—My question is directed to the Minister for Justice. Can the minister say how many Federal Police investigations have been conducted into alleged leaks in the environment department since your government came to office? How many public servants have been interviewed, subjected to disciplinary action or charged as a result of these investigations? How many Federal Police investigations were there into the environment department in the three years prior to this government coming to office? A spokesperson for Senator Hill told the West Australian that the Federal Police investigations into leaks from government departments was `standard operating practice'. Can the minister advise when this became standard practice and at whose direction? As leaks are commonplace, how many other departments are being investigated at present? What is the cost, and how does this compare with the same period under Labor? I point out that I have given the minister plenty of notice of this question, and I would appreciate a full reply. 5110Vanstone, Sen AmandaSenator VANSTONE7E4SALPMinister for Justice10—I thank the senator for her question. Madam President, if you are happy to let her have a question with notice during questions without notice, I am happy to go along with it as best I can. As I am advised, 50 leaks of information have been referred for investigation to the Federal Police during the period March 1996 to date, and of those seven have been referred by the former Department of Environment, Sport and Territories or its successor Environment Australia.There is a longstanding procedure in place, as I am advised, adopted by the Fraser government and continued by successive governments since then for the referral of such matters to the Australian Federal Police. The procedure requires that matters of a politically sensitive nature requiring the assistance of the Federal Police should be raised with the minister responsible for the Federal Police in the first instance rather than being directly referred to the Federal Police. That procedure ensures that the government is informed at the earliest juncture of potentially politically contentious matters that might require Federal Police investigation. An exemption from that policy is made in the case of Australian Electoral Commission matters.The Federal Police conducts each investigation into all matters referred under this process thoroughly and independently without political interference. It does not receive orders from ministers or departmental heads on what it investigates or how it undertakes its investigations. It would not be appropriate to comment in any detail on any investigations under way. There are sound and proper operational and privacy considerations which make this approach essential.The AFP, as you might expect, would not—and, as I am advised, does not—have a record of any disciplinary action that may be initiated by any department. That is a matter for the particular departments to pursue if public servants are not following the requirements of their employ. I can advise that the AFP maintains a special investigations team for such investigations. The resources allocated for each individual investigation depend on the priority and obviously the complexity of the matter.5111Allison, Sen LynSenator ALLISON1M6VICAD00—Madam President, I ask a supplementary question. The minister has partially answered my questions, but if I can ask again: isn't it the case that there are more police investigations into Environment Australia than other departments? How does the minister explain that? Isn't it also the case that there are leaks from government sources on a regular basis? Given that this is a standard procedure, can the minister provide a breakdown by department of Federal Police investigations showing the number of people interviewed, those subjected to disciplinary procedures, those charged and the resources used in each of those investigations?5111Vanstone, Sen AmandaSenator VANSTONE7E4SALPMinister for Justice10—I will take that question on notice. Senator, if you were interested in the proper use of resources, you might not have asked that question. The Federal Police have got a quite bit to do other than chase around and give reports to the Senate on minor investigations they have done and how many hours it has taken. I can see some poor soul being given this task and going down to the bowels of the Federal Police filing system, never to be seen again. I understand the generality of what you are after, Senator, and if we can discuss this after question time and come to some reasonable understanding of what you want to know at no great cost, we will be happy to comply as best we can.51115111Ray, Sen RobertSenator ROBERT RAYUI4VICALP00—My question is to the Minister for Resources and Energy. Can the minister confirm that the metamorphosis from IMPL to White Rhinos basically occurred on 25 June 1998? Can he confirm that, as part of those arrangements, White Rhinos took over the management of 2,600 Telstra shares worth $11,310; 46,937 Australian Foundation Investment shares worth $124,383; 12,037 Argo Investments shares worth $38,518; 11,223 Woolworths shares worth $58,920; and 2,918 Simsmetal shares worth $20,426?LD4ALSTONSenator Alston—Madam President, I rise on a point of order. How can it possibly be relevant to be asking the Minister for Resources and Energy whether he had Woolworths shares? This is just an excuse and an opportunity for Senator Ray to play the politics of greed and envy and to trot out a whole list of investments by a particular company.10000PRESIDENTThe PRESIDENT—Senator Alston, which standing order are you referring to? Keep it brief.LD4ALSTONSenator Alston—Relevance, Madam President, purely and simply. What possible relevance has Woolworths got to do with Senator Parer's ministerial responsibility?10000PRESIDENTThe PRESIDENT—There is no point of order.UI4Senator ROBERT RAY—Minister, were those shares transferred to White Rhinos? Were they at that value? Minister, when is enough enough? Surely that was enough for you and the rest of them. Why did you have to crowd out all of the battlers in the Telstra float? (Time expired)BH4HILLSenator Hill—Madam President, I rise on a point of order. There is no way at all that the issue of the value they were transferred at can be relevant to this minister's portfolio. The other point on relevance is that, as Senator Parer has said, he has maintained no beneficial interest in share portfolios since he has been a minister.Opposition senators interjecting—BH4HILLSenator Hill—No, it is important—he has had no beneficial interest while he has been a minister. There were ongoing complaints about the structure of a trustee company and what he then did was transfer interests away from it. So we are not talking here about transferring to Senator Parer; we are talking about transferring away. Yet we have spent a whole question time talking about that. There is no way that that can be relevant to the administration by Senator Parer of his portfolio responsibilities and it should be, therefore, ruled out of order.5K4FAULKNER Senator Faulkner—On the point of order, Madam President: we have already had clear evidence presented in question time today that Argo Investments have considerable holdings in ERA. A decision has been made by this Minister for Resources and Energy relating to Energy Resources of Australia, a very well-known decision—in fact, the go-ahead for the Jabiluka uranium mine. I suggest to you, Madam President, that all of the question Senator Ray has asked is in order. I think you have established a clear precedent in question time that that is the case. Senator Alston and Senator Hill are covering up for Senator Parer.10000PRESIDENTThe PRESIDENT—Senator Faulkner, you ought not to be making that allegation. There is a valid point of order which you are entitled to make. You should not go on and make those sorts of assertions.5K4FAULKNER Senator Faulkner—Madam President, I make this procedural point to you: I believe both Senator Alston and Senator Hill are using the device of a point of order to ensure that this minister catches his breath and gets an opportunity to think how on earth he can get out of the jam he is in.UI4RAYSenator Robert Ray—On a point of order, Madam President: I want to go not to the three points made so far, but to the relevance of my question. Senator Parer came into this chamber some months ago and asked for leave to table documents which indicated a course of action. I thought he did so as a minister. I asked in my question whether the transfer occurred on 25 June—in bulk, not in its entirety. I have referred to the five company shares that are discoverable on the register so far. We can get the rest from Queensland tomorrow. I asked whether they occurred on that date and about the amount of those shares so that I could scrutinise whether Senator Parer has kept his commitments made in this chamber in writing. I thought the question was in order. If Senator Parer does not want to go to some elements of it, it will not surprise anyone.5112Parer, Sen WarwickSenator PARERKI4QLDLPResources and Energy10—I am happy to answer that question. The transfers occurred towards the end of March. This was done with leading lawyers and accountants around town. With regard to the actual transfers, the date on which both my wife and I moved away from any sort of responsibility in regard to the board or the management of the trust was on about 26 March.Senator Cook raised a question the other day as to whether the Investment Management company had been deregistered. One of the things I found out, Senator Cook—because I was not too sure; I know the instructions were given—was that these things take time. One of the things you must do, apparently, is advertise in case there are some liabilities against it. I gather that that process is going on. Irrespective of that, with regard to the transfers across to White Rhinos as the manager, to my knowledge, and in accordance with the instructions given to me by people who should know more than me, including the solicitors and accountants, it all occurred at about the end of March.5112Ray, Sen RobertSenator ROBERT RAYUI4VICALP00—Madam President, I have a supplementary question. Minister, in the process of this transfer, did it ever occur to you that your holding in Australian Foundation Investments involved you in further interests in companies such as CSR, Plutonic Resources, QCT Resources, Rio Tinto, Santos, Western Mining, Woodside Petroleum and, indeed, $59 million worth of BHP shares?5112Parer, Sen WarwickSenator PARERKI4QLDLPResources and Energy10—I thought I answered that question earlier. One of the difficulties related to deciding what companies should be invested in. The advice that was received from the brokers at the time was that these were arms-length type investments—as I said earlier, very similar to National Mutual and AMP. If you go down that track, it means that nobody in this place can have any superannuation or any insurance policy, because that is what these companies do.AW5CARRSenator Carr—What is wrong with parliamentary super?KI4Senator PARER—Nothing, Senator. Madam President, if you look at the percentages of the total, and bearing in mind that they are large investment companies, it is a very tiny amount and it would be similar to the sort of thing that one would invest in a super fund or an insurance policy.BH4HILLSenator Hill—Madam President, I ask that further questions be placed on the Notice Paper .Miscellaneous511315:04:005113Brown, Sen BobSenator BROWNQD4TASAG00—During question time, Madam President, I drew your attention to the fact that some people were asked to leave the press gallery. I have looked at the standing orders. I note that standing order 175 says that people will be asked to leave if there is a disturbance, but there has been no disturbance. I ask: if it is the case that there are dress rules which apply to men but not to women which are being invoked in this situation—it has happened twice in the last week—will you ensure that they are applied across the board and that the basic tenet of being well dressed is enough to allow somebody to be present in the gallery and not removed from covering the proceedings of the Senate?10000PRESIDENTThe PRESIDENT—You raised this matter earlier during question time. I have not had an opportunity to find out anything about what has happened today or at any other time. It is the first I have heard of it. I will make the inquiries that I indicated I would do.Questions Without Notice5113511315:05:005113Hill, Sen RobertSenator HILLBH4SALPEnvironment10—Yesterday, Senator Ray asked me a series of questions about prime ministerial notices to his ministers and their staff in relation to buying Telstra shares. The Prime Minister wrote to ministers in August 1997 pointing out that ministers and staff directly involved in the Telstra sale, who might therefore be privy to privileged information, should not buy shares in Telstra. Other ministers and parliamentary secretaries and their staff were advised not to buy shares for 90 days after the first trade. Spouses and children could buy shares at any time, provided they were acting independently and not merely as proxies.Miscellaneous511315:06:005113Hill, Sen RobertSenator HILLBH4SALPEnvironment10—by leave—Last Thursday, the Senate ordered that the government produce electorate issues briefs prepared by departments at the request of ministers or their offices. I am told that departments have supplied electorate briefs to their ministers on request from ministers or their offices for many years. I am informed that such a brief probably would obtain geographical, electoral, economic and industrial data relating to the electorate. This is the sort of material available from the Australian Electoral Commission and the Parliamentary Handbook . It would also contain a summary of the portfolio's activities in the electorate and a summary of current issues relevant to the portfolio. Briefs provided to the Prime Minister are comprehensive and summarise all portfolios' activities in the electorate.I am also told that the practice of supplying electorate briefs varies widely between departments. Some departments supply them; some do not. Some ministers request them; some do not. I cannot personally remember requesting such a brief. Madam President, I am endeavouring to discover how widespread is the use of the briefs across this government, and I have asked for some examples to satisfy myself as to their scope and content. I am awaiting that information—so what I am giving you is an interim report—and I expect to receive that soon. When I have had an opportunity to evaluate the information, I will report again.I note that in 1995, Senator Abetz suggested to an estimates hearing that the electorate briefs provided to the then Prime Minister might be tabled. Former Senator McMullan indicated that the nature of the documents had not changed, at least in the case of the Prime Minister, for a long time, perhaps decades, and pointed out that they had never before been tabled. In a written reply, the government indicated the type of information provided in the briefs, but no more. I presume that the type of information provided in the briefs is what Senator Faulkner was really seeking from this resolution.Questions Without Notice5113511315:08:005113Faulkner, Sen JohnSenator FAULKNER5K4NSWALP00—I move:That the Senate take note of the answers given by the Minister for Resources and Energy (Senator Parer), to questions without notice asked today, relating to the financial interests of Senator ParerSenator Parer is guilty of three offences. He has openly defied the code of ministerial conduct of the Prime Minister (Mr Howard) by divesting shares to family members, he has defied the Prime Minister's instructions to his ministers in relation to the purchase of Telstra shares within 90 days of the Telstra float, and he has deliberately concealed the extent of his interest in Telstra shareholdings from the Prime Minister, the Senate and the Australian people.The first offence could not be more obvious. When Senator Parer was first exposed as having contravened the Prime Minister's code of conduct by holding shares in a company involved in the area of his portfolio responsibilities, what did Senator Parer do? He simply tried to resolve that breach by committing another breach. He divested himself of his shares and interests in the Parer family trust company, IMPL, but how did he divest? He divested to other family members constituted as White Rhinos Pty Ltd. What does the Prime Minister's code say about this dodge? It says this:The transfer of interest to a family member or to a nominee or trust is not an acceptable form of divestment.So nothing could be clearer. How on earth can Senator Parer justify transferring his interest to yet another Parer family trust? This is the latest sham, the latest dodgy Parer family front company. You might ask why it is a company called White Rhinos. Perhaps it is because Senator Parer thinks that he is on the verge of political extinction, but I do not think that is the case. It was named White Rhinos because Senator Parer has an unbelievably thick hide. It might look like a rhino and it might walk and grunt like a rhino but it is really the Parer family trust, IMPL.The second offence of Senator Parer is equally clear-cut. The Prime Minister wrote to all his ministers and instructed them not to purchase Telstra shares within 90 days of the float. That applied to all his ministers. What did Senator Parer do? He got in on the ground floor and purchased 2,600 shares in the float through his family trust vehicle, IMPL. It was an entity of which he was a then director and in which he held eight of the nine shares. He did that notwithstanding the fact that the Prime Minister said it was not acceptable for a minister to purchase shares in the name of a spouse, nominee or trust.Finally, when Senator Parer decided to come clean on the extent of his many and varied interests, why did he choose to reveal only the 2,200 Telstra shares purchased by Spanlex, one of his three family trust structures? It was a purchase he claimed was okay because Spanlex was controlled by his wife. Why did he say nothing about the other 5,000 shares that Spanlex purchased in its capacity as a trustee of the Rutherglen superannuation fund? He also concealed the purchase of the 2,600 Telstra shares through IMPL and 3,000 shares in Gashbah. I will tell you why: this minister is a serial offender, a compulsive avoider and a compulsive dissembler. He has no regard for codes of conduct and the like. He has no propriety in the conduct of his ministerial responsibility.N26ABETZSenator Abetz—Madam Deputy President, I raise a point of order. I have listened for, I assume, nearly five minutes to the Leader of the Opposition in the Senate.RF4COOKSenator Cook—What is your point of order?N26ABETZSenator Abetz—If Senator Cook listened and stopped interjecting, he might get to hear the point of order. I have now listened for nearly five minutes to Senator Faulkner's speech. The whole speech has been peppered with accusations that reflect very adversely on the minister. With respect, Madam Deputy President, you have sat there with a smirk on your face from time to time.10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Excuse me, Senator.N26ABETZSenator Abetz—I suggest to you, Madam Deputy President, that when you are in the chair as the Deputy President trying to retain order in the Senate it would be appropriate for you to ask the Leader of the Opposition in the Senate not to breach the standing orders. He said that the minister is guilty of offences; that he has a thick hide; that he is involved in shams; and that he is a compulsive avoider. I remind you, Madam Deputy President, that just the other day I was required to withdraw an allegation against a senator opposite that he had an appalling track record. That is all I said, and I was required to withdraw it. If we are going to have those standards in this Senate, that is fine and I will abide by them. However, I suggest, with respect, that you ought to call Senator Faulkner to order.UI4RAYSenator Robert Ray—On the point of order: I do not think it is up to rank and file senators in the Senate to interpret the way that you look, Madam Deputy President. You have shown tolerance in the chair. I am certain that Senator Alston rejects his interjections from the back bleachers, which are normally crunched by a chair. You showed tolerance for him when he was standing right up in the back and interjecting. That was fair enough; you let it flow. The basic thrust of Senator Abetz's comments are insulting to you and the chair. It is not up to senators to interpret what you may be doing. I certainly did not observe you particularly enjoying Senator Faulkner's contribution or otherwise. I think you were just doing the normal job of the chair in this place. It is very easy to pick out a chair from the opposite side, criticise them and have a lash at them, but it does not add to the dignity of the chamber.BH4HILLSenator Hill—Madam Deputy President, on the point of order: I must say that I thought what Senator Faulkner was saying was a bit of a joke as well, so I could understand if you had a smile on your face. Apart from that, on the substance of his delivery, it is not proper to make the accusation. It is certainly legitimate for Senator Faulkner to be developing his case but, if he wants to accuse Senator Parer of an improper behaviour, then there is a different course of action that is open to him. To do otherwise is to reflect upon him contrary to that which is allowed under the standing orders.UI4RAYSenator Robert Ray—Your jackboot dictatorship.10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Order! Senator Ray, would you care to withdraw that please? UI4RAYSenator Robert Ray—Jackboot dictatorship?EP5FERGUSONSenator Ferguson—You have to say please to Robert, do you?10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Senator Ferguson, you are not helping the situation.UI4RAYSenator Robert Ray—If offence was given, I withdraw unconditionally, but I do point out that we cannot even move a notice of motion in this place to take up Senator Hill's offer.BH4HILLSenator Hill—That is what is called democracy. When Senator Ray had the numbers, he had no hesitation in wielding them to suit his purpose but of course it is now very different; he is in opposition.UI4RAYSenator Robert Ray—It was a lot easier too.BH4HILLSenator Hill—And it was a lot easier because he used to get the Australian Democrats to roll over whenever needed. Apart from that, Madam Deputy President, I am suggesting to you seriously that the technique that is being adopted by Senator Faulkner in this debate is contrary to the standing orders and he should be obliged to debate the issue and not make the accusation.LD4ALSTONSenator Alston—On the point of order, Madam Deputy President: I think it is perfectly clear that the standing orders do not allow personal imputations to be cast against senators.UI4RAYSenator Robert Ray—You ought to talk.LD4ALSTONSenator Alston—Well, you can take an objection any time you like and we will deal with it. The standing orders do not preclude Senator Faulkner from characterising particular behaviour in a certain way, and of course he is capable of doing that in spades. But Senator Ray nodded in agreement and said, `Yes, that is exactly what is occurring.' Senator Faulkner was indeed casting personal aspersions against Senator Parer and that is why he did not get up and take any objection to that. He basically dealt with a fringe issue but he did not address the substance of Senator Abetz's complaint, because Senator Ray acknowledged across the chamber that Senator Faulkner was doing exactly that. Senator Ray knows that you are not allowed to do it. He did not quarrel with the proposition that you should not do it. He simply talked about other matters. The fact is that Senator Faulkner ought to be restricted by the standing orders and not allowed to simply come in here and time and again crawl in the gutter and trot out statements about an individual rather than that individual's behaviour.10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Senator Faulkner, you did use the words `compulsive dissembler', which does reflect upon the minister and I would ask you to withdraw that. Senator Abetz, I will get to you after Senator Faulkner has withdrawn.5K4Faulkner, Sen JohnSenator FAULKNER—I withdraw.10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Senator Abetz, I did not appreciate your reflections upon the chair and I would appreciate it if you ceased that and did not repeat it in the future. If you are prepared to withdraw it, I would be most appreciative.N26ABETZSenator Abetz—I withdraw.10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Thank you. I call Senator Faulkner.5K4Faulkner, Sen JohnSenator FAULKNER—Of course, Senator Parer will not do these things. He will not be expected to, with a gormless leader like Mr Howard. He knows he will get away with it.10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Senator Faulkner, would you please withdraw that.5K4Faulkner, Sen JohnSenator FAULKNER—Is `gormless' unparliamentary?10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Yes.5K4Faulkner, Sen JohnSenator FAULKNER—Well, I withdraw it. With a weak and snivelling leader like Mr Howard—10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Senator Faulkner, please!5K4Faulkner, Sen JohnSenator FAULKNER—Is `weak' unparliamentary?10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—No—5K4Faulkner, Sen JohnSenator FAULKNER—I will not withdraw that.10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—You used another word.5K4Faulkner, Sen JohnSenator FAULKNER—Is `snivelling' unparliamentary, Madam Deputy President?10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—It is a reflection.5K4Faulkner, Sen JohnSenator FAULKNER—If it is unparliamentary, I will withdraw it. With a weak leader like Mr Howard, Senator Parer probably will get away with it. He should not. He should resign.15:20:005116Abetz, Sen EricSenator ABETZN26TASLP10—Isn't it amazing that, once the standing orders are applied rigorously against the Leader of the Opposition in the Senate (Senator Faulkner), he can hardly get a speech out? That is the thing that has characterised—10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Order! Senator Abetz, do not reflect upon another senator. Please continue.N26Abetz, Sen EricSenator ABETZ—Thank you. That is the thing that has unfortunately been characteristic of opposition attacks in recent times; they use unparliamentary language which is clearly in breach of standing order 193(3). I would have thought that today, with the gallery full and with the broadcast sign on, the Labor Party may have used question time to deal with the issues that this nation faces, such as unemployment. But of course they do not want to touch unemployment because, if we were to talk about unemployment, we would be reminding them of their abysmal record.What about budget deficits? That is another important issue. They do not want to talk about budget deficits. Why? Because we would be pointing out the $10.5 billion deficit they left to us. We could talk about industrial relations, but they do not want to talk about industrial relations because they are all former trade union officials and they do what the trade unions tell them to do, irrespective of what is within the best interests of the nation. They do not want to talk about waterfront reform because, in their 13 years of government, they failed to deal with the issues.They do not want to talk about the Natural Heritage Trust that we established because it has been such a great success in restoring the environment of this country. They do not want to talk about welfare fraud, which they presided over but which the Minister for Social Security, Senator Newman, has so systematically cleaned up. They do not want to talk about the Asian currency crisis. They do not want to talk about the drug strategy of the Prime Minister (Mr Howard). They do not want to talk about the new Job Network. What do they want to talk about? A minister and his personal investments. All they are trying to do is to besmirch a minister who is respected by everybody on this side as being honest, very capable and a man of integrity.I think the Labor Party realise that, over the past few days, they have taken a beating, especially in regional Australia, in relation to the issue of native title. They realise that the intervention in the debate of their former Prime Minister, Mr Keating, who was the architect of the failed Native Title Act 1993, which has now been shown to be so full of holes, has occasioned them great embarrassment. They do not want to talk about Aboriginal affairs or native title. So what do they do? They go on an attack on an individual minister because he happens to have some wealth.The Labor Party have to come clean in relation to the issue of policy. Where are their policies? They have no policies in those fundamental areas of unemployment, budget deficits, industrial relations, and so the list goes on. So what do they do? They concentrate all their efforts, every single question in question time today, on the purchase of Telstra shares by a member of Senator Parer's family.At the same time—and the people of Australia might be interested in this—there are two senators sitting opposite who took full advantage and purchased Telstra shares. What is more, they have a senator sitting opposite who, in fact, runs a family trust—something which they accuse the minister of doing. They have a senator over there who runs a family trust and they have two senators over there who have bought Telstra shares, yet somehow, because they have this complete vacuum in the area of policy, they are trying to distract attention from their own policy deficits. Their attack on Senator Parer will reflect very badly on them in the weeks to come. We on this side have great confidence in Senator Parer. (Time expired)15:25:005117Cook, Sen PeterSenator COOKRF4WAALP00—We have all heard of the saying: the rich get richer and the poor get poorer. The performance of Senator Parer in this affair is of one who believes in at least the first part of that saying. He is one of the wealthiest members of this parliament, and he could not resist an opportunity to accrete further wealth to himself and to his family through a complex series of personal trusts, of which he will ultimately be the beneficiary.It does not matter how inappropriate his actions are. It does not matter how seemly they are. It does not matter if they defy the Prime Minister (Mr Howard). We know that, in this case, they defied the Prime Minister and specifically a letter from the Prime Minister to all of his ministers, of whom Senator Parer is a prominent one, saying that they should not purchase Telstra shares. Nothing is going to stand in the way of this minister's dash for cash. What did he do? He dived in and, through a complex series of trusts, made sure that he was a significant beneficiary.Let us go immediately to the facts here. The fact here on trial is of a minister whose public office is being confused with his private gain. That is a fundamental flaw in this system. Ministers should be above reproach. This minister is not, and I will demonstrate it. First of all, this minister has form. He had his hand in the till before.10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Order! Senator Cook!RF4Cook, Sen PeterSenator COOK—I withdraw.EP5FERGUSONSenator Ferguson—Well, don't say it in the first place, you troll!10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Order! Senator Ferguson, would you withdraw that as well, please.EP5FERGUSONSenator Ferguson—I withdraw.RF4Cook, Sen PeterSenator COOK—When he was minister before, he held shares in companies in his own portfolio over which he has control of policy. That was in clear breach of the Prime Minister's guidelines. That was in breach of past practice in this place. If he did not actually obtain private gain, and we are not sure of that, it certainly breached the principle that justice must be seen to be done, because in this case it was not.He defied the Prime Minister because he purchased shares in Telstra within the 90-day period after the float. What does that mean? The Prime Minister said in his letter that you cannot buy them in your own name, in your spouse's name or in the name of a nominee or a trust. I would have thought that was clear enough, but he has obtained shares which go to his own pecuniary interest. Let us go to the record. Mrs Parer got 2,200 shares. IMPL, as a trustee of the W.R. Parer family trust, got 2,600 shares. Gashbah, a Parer family company, got 3,000 shares. Spanlex, a trustee of the W.R. Parer family trust No. 2, got 2,200 shares. Rutherglen super fund, a related Parer entity, of which Spanlex is a trustee, got 5,000 shares. That is a total of 15,000 shares. That is not a bad effort for someone who was forbidden to get any at all. It does not, of course, include the shares that went to his immediate family.This is a millionaire minister. The shares were floated at $1.95. Today, on the Stock Exchange, they are trading at $4.37.EP5FERGUSONSenator Ferguson—A very successful company.RF4Cook, Sen PeterSenator COOK—Yes. The forbidden profit obtained by this minister by breaching the Prime Minister's directive was $36,000. He got that. None of you did. Those of you who abided by the Prime Minister's directive did not clean-up. This minister did.All in all, the Parer interlocking trusts and immediate family bought 24 parcels of Telstra shares. The lot added up to 24 separate parcels. Not all necessarily go to Senator Parer's immediate pecuniary interest, but what is a fact—a fact that Senator Parer could not get out of today and, interestingly, did not disown—is that, within minutes of his resigning as a minister in this place, he has so contrived his family affairs in business that he can walk in and immediately become a beneficiary of the investments that have been made in areas of his own portfolio and in the purchase of these Telstra shares. That is the fundamental truth of this situation. He did not walk away from it. It stands there right before this chamber as an irrefutable fact.Senator Parer said that he would dispose of his assets, and he disposed of them into a new management entity, White Rhinos Pty Ltd. In other words, he handed over the management of his assets to his children. If anyone goes to the Prime Minister's code of ministerial conduct, I contend that he is in direct breach of that code. (Time expired)15:30:005118Ferguson, Sen AlanSenator FERGUSONEP5SALP10—What we have seen here again today is a desperate effort and a grubby little exercise in the politics of envy. It is a deliberate misrepresentation of the facts. Why is it that the Labor Party so hates successful Australians? That is, they hate those successful Australians who are not acolytes of the Labor Party and I might add there are very few successful Australians who are acolytes of the Labor Party because they can see through them straight away.Not only have we seen the Labor Party in this desperate little exercise of grubby politics and deliberate misrepresentation and envy, but also we have seen Senator Cook stand up and make a personal attack on the Minister for Resources and Energy, Senator Parer, which was highlighted to you, Madam Deputy President, in some points of order. Quite frankly, I thought he got away with some statements that were out of order in this place, but I did not want to take up all of the time of the Senate in points of order. I think you should read what Senator Cook had to say in Hansard tomorrow and reflect on whether or not some of the things that Senator Cook said today have not been a personal reflection on Senator Parer.Senator Faulkner, in his speech taking note of answers, suggested that Senator Parer is guilty on three counts. Well, I agree with Senator Faulkner. Senator Parer is guilty of honesty; he is guilty of integrity; and he is guilty of willingness to work hard for Australia and to provide Australians with jobs through his willingness to invest back in Australia. He has not spent all of his life working for the Labor Party or as a member of parliament. He actually had a career prior to coming into this place and was very suc cessful at his job. That is why he is in the position that he is in today.He is a successful Australian who was willing to volunteer for public office. He has served this country well, and he has been the best resources and energy minister that we have seen for a long time.AW5CARRSenator Carr—He's certainly done very well out of it.10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Order! Senator Carr!EP5Ferguson, Sen AlanSenator FERGUSON—Senator Carr had the hide to say, `You've got your parliamentary super. Isn't that enough?' Senator Carr's only interest is in getting his parliamentary super. Senator Parer came into this place having prepared for his retirement with sheer hard work and a willingness to set up his own superfund prior to getting here. Not to mention that Senator Parer was willing to invest in Australian companies which provides jobs for those people that you say that you represent. If it were not for the Senator Parers of this world, there would be less investment in Australia. And they are providing proper jobs in Australian industry, not like half of the senators opposite who have had the sorts of jobs which rely on other people's work to pay their salaries.Why is it that this opposition spends the whole of question time on this grubby little exercise of questioning Senator Parer on his investments? Not one question on policy because they are bereft of policies. If they try to question the government and suggest that the government's policies are not proper in any way, they have nothing to fall back on because, in fact, they have no policies.Let us talk about their fiscal strategies. Their shadow Treasurer as recently as May said, `You've got to have a reliable Treasury, and it was the Treasury forecasts that let us down.' But then when asked, `But you also left us with a $10 billion deficit as a result of forecasts,' he said, `Yeah, but it was a deficit that could and would have been corrected.' After all that time, the shadow Treasurer, Mr Evans, conceded to having a deficit but said, `Just keep giving us another chance. Just let us stay in government forever. Give us time and eventually we will correct it.' It might take 20 years but that does not matter. You will only ruin half of Australia and you will have a million people out of work again. If this Labor Party ever gets the chance to govern Australia what will happen is that we will soon be back to a million unemployed again, because they have no policies and they have no fiscal strategy to try to get Australia back on track again. This government, in a period of two years, has reduced that $10 billion deficit that was left to us and will continue to do so. (Time expired)15:35:005119Ray, Sen RobertSenator ROBERT RAYUI4VICALP00—In one way it is a pity that we never adopted the Venetian tradition of the Doge, who was the temporary autocrat in Venice, because their assets were taken when they were given the job. And if those assets increased in the time that they were the temporary autocrat, then all their wealth was taken away. Poor old Senator Parer if that happened to apply here.What we saw was a great piece of misleading in the Senate this afternoon when Senator Hill answered my question of yesterday with a rather bland statement referring to the correspondence of the Prime Minister (Mr Howard). He did not have to identify a minister, so why didn't he table that letter? Because in that letter they go to the effect of using trusts and he could not possibly have that on the public record, could he?The fact is that IMPL, the company that Senator Parer was chairman and director of and that he owned eight out of nine controlling shares in, purchased the shares on 25 November 1997 and did not dispose of them until 25 June this year. Senator Parer defied his Prime Minister; Senator Parer has let his Prime Minister down yet again.Senator Parer did not answer one part of the question I put to him, so I will pose it again. When is enough enough? When is someone who is getting a salary of $130,000 a year and a very generous superannuation scheme satisfied? When is enough enough? When he sets up a superannuation equivalent for a 56c investment that turns into $56,000 that is sitting there waiting for him to collect?When is enough enough? When you pay $16 for 16 `C Class' shares in total and they have had a dividend stream over the last 10 years of $1.4 million, and when the net worth of those shares is $2 million, when is making money enough for a public official representing this country? When you have a look at just those five public companies we checked today, or five public transfers from IMPL over to White Rhinos, when is enough enough? Senator Parer would have been aware that his Australian Foundation shares were worth $124,383, that his Argo Investments shares were worth $38,518, that his Woolworths shares were worth $58,970 and that his Simsmetal shares were worth $20,246. None of these figures take into account his investment in Australian Provincial Newspapers Holdings Ltd, the Metway Bank or Buderim Ginger. They do not even start to come in.With all this money flowing in—salary, potential superannuation and tax schemes all pouring in—you would have thought that last November Warwick Parer would have said, `Enough is enough.' But, no, they have to dive in again; they have to dive in again and put their snout in the trough. They have to say, `Through this, the immediate family will buy 24 separate parcels of Telstra, through entities, through individuals, et cetera.' Leaving the children aside, those Telstra shares purchased by Senator Parer and his wife through entities are now worth $60,000. Well, good luck to them; they have made $30,000 on them since the float. But I just ask the question: when is enough enough?Throw that in contrast to their other public stand. This is the side that says they support the battlers. Senator Parer comes up in the Hansard as an advocate for support for the battlers.9L6MACKAYSenator Mackay—They have to pay tax.UI4Ray, Sen RobertSenator ROBERT RAY—I tell you what: they have to pay tax, Senator. They do not have family trusts; they may have got one parcel of shares, not 24. Because of these sorts of groups crowding out the Telstra share sale through family trusts, a lot of battlers may have missed out; they may have been able to buy only 400 shares and make $400 profit. Who knows? But Senator Parer has been insatiable. Today he could not even recall the shareholding. He did not know that he had indirect influences in Jabiluka, in BHP and CSR. It is all too much—money and shares floating everywhere, tax avoidance going everywhere, different superannuation funds; it all became too much for him. He simply, apparently, does not know what he owns. How can he make proper public decisions not knowing what he owns or what he doesn't? (Time expired)15:40:005120Crane, Sen WinstonSenator CRANEUW4WALP10—I rise, too, to speak on this motion before us. There are a couple of points that I would like to bring out right at the start. The first one is the contrast between the presentations of Senator Ray, Senator Cook and Senator Faulkner. At least Senator Ray did try to deal with the issues. While I disagree with him, and while I believe he is totally wrong in his assessment, it was in direct contrast to the slurring campaign that was delivered by the Leader of the Opposition in the Senate and his other grub—or grubby senator, Senator Cook.10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Order! Senator Crane, would you please withdraw that remark; it is a reflection.UW4Crane, Sen WinstonSenator CRANE—I shall withdraw, Madam President, but I deliberately did that to highlight a particular point. I have never heard a presentation which was so deliberately set out to slur and mislead as that by Senator Faulkner, and for Senator Faulkner to be forced to withdraw a whole series of statements. The reason Senator Faulkner went down that particular route, I believe, is that he cannot lay a glove on Senator Parer.In all this questioning that has gone on now for many months against Senator Parer, the Labor Party over there has not been able to prove a conflict of interest. The question they have to answer is: at the end of the day, has there been, or is there, a conflict of interest in what Senator Parer has done in carrying out his ministerial duties in the interests of the Commonwealth of Australia? They have not been able to lay a glove, so they have reverted to this other tactic, as we saw with Senator Faulkner, as we saw with Senator Cook, and as we have seen consistently throughout this whole debate.When have we seen a question time when they devoted every question—every single question—to try to slur and destroy the name of one of the most honourable ministers who has ever served in this particular place? A minister who is so honourable to the point that he has given the Australian mining industry an enormous amount of hope so that they can plan for the future—not for next year, not for the year after, but for the next 20 or 30 years—because they have got certainty in policy, and they have had a lot of the barriers taken out of their way. We even see it in the debate before us with regard to the Wik legislation—once again, bringing certainty back into the arrangements that apply in this country.So I just reinforce the point here in terms of that pathetic presentation from the Leader of the Opposition in the Senate today, which was absolutely totally misleading and away from the mark. He might think that because he is on broadcast some people are going to swallow that. Let me advise those people who are listening, `You should not swallow it, because the Labor Party have not been able to lay a glove on Senator Parer with regard to a conflict of interest.' That, at the end of the day, is the test.You would think that a person who has been around as long as Senator Cook has been would have realised by now that it is time to give the game away and to get on to some policy issues. But, then again, Senator Cook is a very bitter man. I just want to a highlight a quote from 1993. It revealed:I have in my possession a cable which has come my way from the Department of Foreign Affairs, which reports that the Japanese Embassy had received strong representation from Senator Cook's office about his interest in the job of ILO Director-General.At the very same time, Senator Cook was in fact asking the voters in Western Australia to reappoint him as a senator for Western Australia for the next six years. Now that is what I call a conflict of interest. That is what I call somebody who has got themselves so screwed up, become so bitter and so disillusioned with the Labor Party, that they wanted to go down another track. That really is the history of Senator Cook.I come back to what Senator Ray had to say when he was laying down all these things and putting forward these arguments, none of which show a conflict of interest. I put on the record now that when all is put before us, why didn't Senator Ray ask some questions about his former leader, Mr Keating, and Danpork? Why didn't he ask some questions about the relationship with the Commonwealth Bank at that time? If he talks about wanting to increase wealth, he should also have asked at that particular time when enough was enough with regard to the activities of the former Prime Minister, Mr Keating, in relation to Danpork and the Commonwealth Bank. (Time expired)10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Order! The time for the debate has expired.Question resolved in the affirmative.Bills5121r5515121Message received from the House of Representatives forwarding the Adelaide Airport Curfew Bill 1998 for concurrence.Ordered that consideration of the message be made an order of the day for the next day of sitting.Bills5121Messages from His Excellency the Governor-General were reported, informing the Senate that he had assented to the following laws: Cheques and Payment Orders Amendment Bill 1998 Cheques and Payment Orders Amendment (Turnback of Cheques) Bill 1998 Comprehensive Nuclear Test-Ban Treaty Bill 1998 Customs Legislation (Anti-dumping Amendments) Bill 1998 Customs Tariff (Anti-Dumping) Amendment Bill 1998 National Firearms Program Implementation Bill 1998 National Road Transport Commission Amendment Bill 1998 Payment Systems and Netting Bill 1998 Social Security and Veterans' Affairs Legislation Amendment (Retirement Assistance for Farmers) Bill 1998 Taxation Laws Amendment (Farm Management Deposits) Bill 1998 Corporations Legislation Amendment Bill 1998 Stevedoring Levy (Collection) Bill 1998 Stevedoring Levy (Imposition) Bill 1998 Bills5122r4555122Consideration resumed.10000CHAIRMANThe CHAIRMAN—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 amendments disagreed to by the House and agrees to the amendments made by the House. The question has been divided in respect of opposition amendment N30, opposition amendment 183 and Democrats-Greens (WA) amendment 151 concerning statutory access rights. The question is that the committee does not insist upon amendments opposition N30, opposition 183 and Democrats-Greens (WA) 151.15:46:005122Bolkus, Sen NickSenator BOLKUSXE4SAALP00—There are a couple of matters that need to be cleaned up from before lunchtime. Senator Harradine made a couple of comments before lunch which I need to address on the record. One was a comment reflecting upon my interest or involvement in Aboriginal affairs. I can only say to Senator Harradine that, in trying to go back through history and recollections, I can trace back almost 25 to 30 years of interest and of being an agitator in this particular area. It may not be as long as Father Frank Brennan—as Senator Harradine made the comparison—but I would have thought 25 to 30 years is not a bad involvement. I can remember, for instance, talking to indigenous Australians from the Northern Territory in about 1972-73 on land rights issues then and also to people on Pittlands in South Australia before that. That needs to be put on the record.The other accusation that was made by Senator Harradine was some inference that, in my addressing issues related to Father Frank Brennan's involvement in this debate, I was being somewhat sectarian. That is an allegation that I refute wholeheartedly. The issue of Father Frank Brennan's involvement in this debate is something of ongoing concern to all involved in the debate. Father Frank Brennan has had a long and frequently honourable history of involvement in the unfolding of debate on indigenous land rights and native title in this country. He has been there through the evolution of the concepts and played an important and, as I said, frequently honourable role in respect of them.His statements and writings of 15 or so years ago provided a benchmark for social and legal comment in the debate. The impact of his work was positive and quite often courageous. But much has changed over recent years, and the roots that we are talking about—over some 15 or so years—have been developed. The breadth and quality of academic debate, and academic lawyers writing in this field, have grown exponentially.Over the same period, the emerging body of case law from Koowarta through Mabo, through Wik to Croker has been accompanied by a swelling rank of increasingly experienced solicitors and counsel from community based legal assistants to Queen's Counsel and senior counsel. Unfortunately, I think, for Father Brennan, whilst that has developed, a couple of things have also happened with respect to his contributions and his role. His writings, in comparison with the evolving strength of the legal case, have sometimes been underscored by both uncertainty and ambiguity.The particular problem that we now have with the good father stems from the confusion as to what particular hat he may be assuming to be wearing. Is he an academic lawyer? Is he a theologian and a moral guide? Or is he, as is often the case, a political commentator and lobbyist? If you were to look at his recent writings in not just the public press but also in learned journals, you can identify a certain range of characteristics. Unfortunately, I think one of those characteristics is that he has become increasingly dismissive of contrary opinions, heavily reliant on citing his own statements and his own previous writings to justify his conclusions.It is important to note that this is something that does grate with senior counsel in this area—that Father Brennan's writings have been subjected to a different standard of proof or criticism than the writings of respected academics or the views of respected lawyers such as Professor Nettheim, Professor Blackshield, Queens Counsel John Baston, Ron Castan and so on. I think this flows, in part, from the respect that Frank has been able to engender, and quite rightly so. Affection has been won for him over time in the role that he has played and his association with Aboriginal people, but I think it also flows through the ambiguity of his position. The fact is that his work has tended to be critically viewed more in the way that one would approach Father O'Malley's Sunday sermon sometimes than as a serious work of contemporary and legal relevance.In this particular instance in this debate it has been disappointing, to say the least, to observe his reaction and that of some commentators to some of the contemporary debate and criticisms in the area of native title. As I say, case law has moved on; it has developed. Academic legal writings and research and contemporary case law have moved on considerably without, or despite rather than because of, any new or original contribution that Father Brennan has made.Unfortunately for him, for indigenous Australians and also for wider interests in the debate, the people he now finds himself at variance with on key points of law are the very people who have run the successful cases defining the law over the last decade or so. He seeks to characterise the points of dispute and I think this is unfortunate. Quite often he seeks to characterise them not as disagreements between academic lawyers or between academic lawyers on the one hand and case law lawyers on the other, but he sometimes describes them as political conspiracies. I must admit that I find it a bit rich to see the headlines: `The world v. Frank Brennan' or `Brennan Gagged', as we have seen over recent months.I think Frank has played a valuable role, and he has a valuable role to continue to play. As a priest, I think he has a right and a duty to comment on moral issues. As a political commentator, he can line up with the army of other hopefuls in that growing band of commentators. But let us recognise when he does give legal advice, that, as a lawyer, he is one among many. I know from my perspective that in this particular area there are disagreements, but there are people with experience and background in the landmark cases. I would argue and contend that—and I would say this to Father Brennan—one has to be extremely self-confident, to say the least, to not just disagree with those lawyers but to disagree in a way that dismisses their arguments in a very cursory way. In that particular league, I think he struggles to be credible. History does move on. This body of law, thankfully, has evolved. I think, for the sake of Father Brennan's flagging reputation, he should also tune in to some of the writings of eminent counsel and maybe move on as well.I will close by saying that earlier this morning I indicated that I wanted to table two pages from the Western Australian parliament Hansard, which relate to the WA Land Acquisition Act. I seek leave to do that.Leave granted.15:54:005123Cooney, Sen BarneySenator COONEYSF4VICALP00—I ask the minister apropos the right of access: I think you said this morning that a person who wanted to vindicate his or her claim could go to the Federal Court or the recognised state or territory body and it was confined to that, and it was proper that it should be confined because the pastoralists or other prospective defendants should not have to be faced with a variety of courts.I want to raise an issue apropos a general discussion about access to law and justice and refer to an editorial which appeared in the Sydney Morning Herald this morning. If you want to have things equal, why shouldn't a claimant be able to go to whatever court would otherwise be available, apart from the legislation? A family might be faced with proceedings in a state court and the Federal Court. Somebody taking industrial action might be faced with a variety of courts. Somebody in the corporate sector might go to a state Supreme Court or a Federal Court. Why is it that the claimants in the context of this legislation are confined to specified courts? Would it not be more in keeping with what is generally available for them to be able to go anywhere? This might be seen as a small matter but I think there is a whole series of small matters that add up against the claimants.15:57:005124Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I answer by saying that we are talking about statutory access rights, which are a statutory right granted as a consequence of gaining registration with the Registrar of the Native Title Tribunal. Having passed the registration test, considerable statutory rights accrue to the registered claimant, including the right to negotiate and other procedural rights under the Native Title Act, that are not generally available as a matter of common law.Those statutory rights that accrue to the registered claimant include the statutory access rights, which are not, by right, available as a matter of common law. The trade-off—the balance—in terms of having those statutory rights granted as a consequence of registration, we are saying, is that, because you are dealing with a registered claim by virtue of these provisions, with which the ALP agree, that matter would be dealt with under the legal framework set out in the act—and that is, through the Federal Court or equivalent body—and matters pertaining to the claim should be dealt with in the one proceedings.You have your claim before the Federal Court or its recognised state equivalent and it is not unreasonable—given that you have the statutory access rights and other rights that flow from registration—that any enforcement of native title rights being sought prior to a determination that you hold native title be done as part of the claim being brought through the processes laid down in the Native Title Act.If you are quite outside the Native Title Act—if you are bringing a common law claim and you have gone to a state Supreme Court or something like that—you can do what you like and pursue all the common law rights you choose to pursue. But if you are going down the track of having your claim dealt with through the registration process and the considerable benefits that accrue to registered claims under the Native Title Act, we think it is reasonable, in terms of a balancing of rights and taking account of the fact that pastoral lessees are going to get caught up in responding to legal actions of this kind, that the pursuit of rights in relation to the claim be done as part of the overall claim for a determination of native title and that they be done in the one proceeding.I do not think that is unreasonable. I take your point but, given this whole act, the processes under it and the $40 million a year that is available for claimants through rep bodies, it is not unreasonable that any ancillary enforcement of rights that is being pursued should be done as part of the overall claim.16:00:005124Cooney, Sen BarneySenator COONEYSF4VICALP00—I can follow that proposition, but if you look at 44C(1) it seems to go broader than just statutory rights. It says:For so long as the person included in the native title claim group has rights conferred by subsection 44B(1)—and that is the right of access—no person can enforce any native title rights or interests in relation to the whole or part of the land or waters covered by the lease.Then you have H74 `except in proceedings before the Federal Court'. It just seems to me that if you get a person who falls within the description of 44B, then not only are the statutory rights to be vindicated in the Federal Court or a recognised state and territory body, but any rights and by any person. That just seems too broad. It seems to be broader than the description you are addressing.16:01:005125Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—As I say, I think I have to describe this, as I did, as a trade-off. We are creating a statutory access right which does not of right exist at common law. In creating that right, we are saying that the trade-off is that the enforcement of common law native title rights prior to the determination, given that this is a statutory access right granted prior to determination, shall only be, by virtue of our amendment H74, in proceedings before the Federal Court in relation to determination, which we think is an appropriate balancing given the creation of the statutory access right in the first place.16:02:005125Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I really wanted to put this proposition to Senator Harradine, but he is not here. However, I will put it on the record so it does stand as an outstanding question and as the Democrats position. I think it is very clear what the minister is saying, but it does not seem to me that Senator Harradine understood what you were saying. That is why I guess, in a sense, this would have been a question to him.He was saying that the statutory access rights that you have proposed in your amendment H74 preserved what I call the locked gate and the act of government as a way in which physical access could be deemed—that is, if there was a locked gate or a government action which had removed people from any ability to have access to their land, then they would be deemed to have had physical access. It was very clear to me in what you were saying that government policy really could not allow that particular amendment to stand, which was N30, which the Senate agreed to in April, and one which the Democrats and other opposition parties were very keen on.You said in an earlier part of the debate that clearly that could not be allowed under government policy. However, the government was substituting a statutory access right in terms of the wording of your H74. What I thought I heard Senator Harradine saying was that, in fact, N30 is covered under H74. It seems to me that you are saying no, it is not. I guess my question would have had to have been directed to Senator Harradine. Did he disagree with you or was he still asserting that your amendment H74 picks up N30? Because you seem to be saying that it does not. I am not asking you, Minister, necessarily to comment, but it is a question I leave hanging in the air for Senator Harradine because he seemed to be confused.16:05:005125Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I understood Senator Harradine's comments earlier to refer to the fact that the government has agreed with Senator Harradine to amend the registration test, which is one of the requirements for gaining access to statutory access rights, as you have to be registered. The registration test has been amended to enable a claim group where there is not one person with any physical connection to argue, as part of their application for determination before the Federal Court, that if the only reason they lose or have not got registration is that they cannot satisfy the physical connection test, they seek an order from the court that they be registered if it can be established that one of their parents had such physical access which was subsequently denied by act of government or other third parties.He was saying that this question of the so-called locked gate issue has been dealt with by the government in relation to the registration test. That will enable people in that situation to get their claim registered. But the government is not prepared to further amend the statutory access rights regime, except in the way described—that is, to enable a claimant to seek enforcement of native title rights prior to determination as part of their Federal Court proceedings.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Chapman)—The question is that the committee does not insist on the amendments.Question resolved in the affirmative.XE4BOLKUSSenator Bolkus—I will not be calling for a division, but I do want the record to state that the Labor Party did continue to press the amendments. HX5WOODLEYSenator Woodley—I ask that the record show that the Democrats voted no against the question and also supported the pressing of the amendments.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Chapman)—Is it now the wish of the committee to proceed to the compensation items? There being no objection, it is so ordered.16:07:005126Bolkus, Sen NickSenator BOLKUSXE4SAALP00—The opposition has some amendments here. The question of compensation is one that we believe has not been adequately addressed by the government; it has not had the will to do so. In some respects, where it is acknowledged there is a legal responsibility and a constitutional responsibility to accommodate adequate compensation, the government has been a bit sneaky and tricky in its approach to those responsibilities.We are concerned that this particular legislation embodies an overdose of legislative extinguishment and, as such, the compensation provisions of the Native Title Act and the constitutional imperative to have them have assumed great importance. We have discussed in previous debates our concerns, for example, in dealing with division 2B and the legislative extinguishment of native title.Also, we have noted before—and it needs to be noted for the record now—that there was almost universal concern amongst eminent lawyers who appeared before the Senate Legal and Constitutional Legislation Committee inquiry into the constitutionality of the legislation. Their concern was as to the provision of just terms under this bill. That concern—and it needs to be stated again—went not just to quantum but particularly to process, for instance, as with the notification of acts which attract compensation; and the fairness of a process for recovering those sums, especially in areas where the interests of the non-indigenous people generally enjoy up-front validation.We do not need to go into extensive debate again; as I say, the record shows the arguments. But it is important to summarise two or three points as to the opposition's concern here. Our concern is that the parliament must express to the courts, in an unambiguous fashion, that the compensation provisions under the Native Title Act are intended to be genuine. As a matter of principle and as a matter of constitutionality, we cannot allow these provisions to be either a dead letter, a hoax or a tortuous process. Compensation processes must be viable, they must be expeditious and they must be comprehensive, and not just for the claimants and titleholders but also for other stakeholders in the processing, including the states. This is particularly so, as I say, when the government is providing up-front certainty and a degree of up-front extinguishment.In respect of the amendments before us now, we have a concern that one of the amendments that was accepted by the Senate at the last hearing—the amendment in respect of small claims—has been somewhat changed. We had a fast track mechanism in place to handle small claims in this particular jurisdiction. Not only was it on equity and fairness grounds, but it was also to assist with the constitutional basis of this legislation. When there is so much up-front validation, there is a need to ensure—to the extent it is contemporaneously possible—compensation in many of those circumstances. That is a principle that has been embodied in some High Court cases.Government amendment No. 51, which is before us, allows the Federal Court to delegate to the judicial registrar the power to hear and determine small compensation claims of under $100,000—that is, small in the context of this legislation. The opposition agreed to that amendment, and that was put in the last debate. But the government has now rejected its own amendment and replaced it with a less favourable version, which is identified as government H75.Government H75 is expressed in similar terms to government amendment No. 51, except for the addition of a critical proviso that there must be a registered determination of native title over the area in question before the fast track compensation provisions apply. This provision, in its effect, appears to remove the benefit of the fast track because, to get through the fast track, native title parties must go through the lengthy and cumbersome process of full native title hearings to establish that they once held native title before the fast track regime is triggered.Our concern, therefore, is that the fast track proposed and adopted by the government just a few months ago is now going to be undermined by this intervening provision. So what we will seek to do is support the pressing of government amendment No. 51 from the last process and oppose new government H75.There is concern as to the government's amendment No. 53, which added a note to the end of section 51(1). Amongst other things, that note says that ordinarily `under the general law, native titleholders may be able to recover compensation for the valid and invalid acts of governments in the Federal Court'. We have concerns with that. No. 53 is now embodied in H76, I believe.We opposed No. 53 last time because of its vagueness. We moved opposition N31, which stated in unequivocal terms—and not merely as a note, but as a subsection of section 51(1)—that `compensation is payable for loss or impairment of native title, whether the loss or impairment results from valid or invalid acts'. What we are really doing by way of this particular provision is ensuring that the constitutional requirement for `just terms compensation' is met. As I said earlier, by doing so, it enhances the possibility or the capacity for this legislation to withstand challenge, as opposed to the provision in the constitution which demands just compensation.So we now oppose government No. 53 and press opposition N31. The terms of `just terms compensation', opposition R188, amends 51(1) to ensure that `wherever under the act there is an entitlement to compensation that it is compensation on just terms'. The government agreed to this amendment in the House of Representatives on 6 December last year, but for some reason it has since changed its mind.I turn again to the fast-track compensation claims. Opposition amendment RN32, which we continue to press, opened the way for fast-track compensation determinations by giving the judicial registrar of the Federal Court the power to make directions in respect of com pensation proceedings to ensure that such compensation claims are determined as quickly and as cheaply as possible and without unnecessary formality. For some reason, the government has rejected opposition RN32. It has replaced it with an alternative amendment H76, which limits the fast-track direction making power to the judges of the Federal Court rather than the registrars. For the reasons stated, in respect of fast-track provisions, we think they are being undermined and, in respect of just terms compensation, the language needs to be tighter. For these reasons, we continue to pursue the following amendments: government 51, opposition R188, opposition N31 and opposition RN32, amendments which were accepted last time but which are not being proceeded with this time.16:15:005127Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I will try to pick up a few of the comments made by the opposition. Firstly, I refer the opposition to H76, which makes it clear that the power in relation to this so-called fast-tracking or small claims compensation matters can be delegated to judicial registrars. That is the purpose of that amendment. It is essentially the same as what was being proposed by the opposition and enables small compensation claims to be dealt with by the registrars.XE4BOLKUSSenator Bolkus—We will withdraw RN32.JX4Minchin, Sen NickSenator MINCHIN—Fine. I think another matter the opposition was concerned about was the question of whether compensation could be payable before a determination. Logic tells you that, if compensation is payable, it is payable for the holding of native title which has been impaired or extinguished by compulsory acquisition. You cannot be compensated for something you do not legally have. As a matter of law, you only have native title for these purposes when there has been a determination by a court that, as a matter of common law, you have a property right which is compensable in accordance with the constitution.The current act makes it clear under section 13 that compensation can be dealt with at the same time as a determination. So as part of the same proceedings you can get a determination and have a determination of compensation, but there is no provision under the current scheme for having a determination that you are entitled to compensation before a court has even determined that you actually hold native title. I think that defies all logic and certainly defies the scheme of the act. They can happen as part of the same proceedings but you cannot have compensation before determination.I turn to the overall question of compliance with the constitution. I know this is something that some choose to argue as being one of the grounds on which it may be found that this bill may not meet constitutional requirements. We have what we believe to be sound legal advice that the compensation provisions throughout the Native Title Amendment Bill 1997 [No. 2] do meet every and all of the constitution's requirements in relation to just terms compensation. We believe we have gone overboard in amending the bill through the process of the last nine months or so to put in provisions—relating to due process and notice, to cover those arguments that are put—which we do not believe are absolutely necessary, but to ensure there can be no doubt about the constitutionality of the bill on those grounds. We have covered that base in our view.I also remind you of the catch-all provision, which is not dissimilar to that provided in the current act, which makes it clear that the compensation must be that which is necessary to ensure that the acquisition is made on paragraph 51(xxxi) just terms. We do have great confidence in the legal advice we have received that there is nothing in our bill which would render it constitutionally dubious on the ground of its coverage of compensation. We believe with our amendments we have responded to some of the more legitimate arguments put by the opposition. We have acted upon them and have put in place provisions to meet them in terms which we believe are clear, workable and legally sound.16:20:005128Bolkus, Sen NickSenator BOLKUSXE4SAALP00—There is one point which the minister raised which I would like to respond to. Essentially, I think the minister is saying that under the new scheme of things, as opposed to the one adopted by the government in the preceding debate on this issue, the fast-track compensation regime really will not be available to people. He talks about people having to prove a claim and to prove a particular property right, but across the country in all sorts of jurisdictions people have a capacity to negotiate a settlement even before claims are proven. That is in the Supreme Court, the Federal Court and lower jurisdiction courts. Essentially, what we were saying is that we should incorporate in this jurisdiction as well a capacity for a fast-track `small claims' jurisdiction.We also had in place a mechanism that would ensure that, where people felt there was a bit of a try-on, they could refer that to a fuller court process. That is all that was being sought here. The government understood it to be such in December last year. Obviously they have had a rethink and, as a consequence of that rethink, we are now talking about having to prove a whole range of things before one can access the fast-track provisions. As such, it renders those provisions almost useless, I would have thought. As I said during the debate, given Senator Minchin's undertaking in respect of RN32, we will not be proceeding with that particular amendment.16:21:005128Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—Of course, agreements are and will be made in relation to native title matters. One of the unsung heroic parts of this bill is the extent to which we are facilitating the making of agreements. We have been quite up-front about encouraging native title claimants and holders and those who wish to engage in activity on native title land to reach agreement which may well involve financial recompense. That, hopefully, will avoid ever having to have recourse to courts of law.If agreement can be reached and that can avoid seeking actual determinations of native title and legal determinations for compensation, then so much the better. But if agreement cannot be reached and if the native title holders still wish to pursue their legal rights to seek a determination that they hold native title and at the same time or subsequently seek a legally determined level of compensation, then we are putting in place this so-called small claims compensation/fast-track mechanism through the judicial registrar.This does not cut across any of the agreement's provisions. We will be encouraging that to occur. We have some ideas in that regard. I am looking forward very much to the agreement's provisions actually becoming law and being used. This is a kind of a fall back which can be used and it can be used more expeditiously than normal processes if it is not possible for parties to reach agreement, which of course will occur from time to time.16:23:005129Cooney, Sen BarneySenator COONEYSF4VICALP00—Can I follow on from what Senator Bolkus was saying. Under government amendment H75(aa)(ii), liability has to be established before you assess the compensation. So I suppose you are having two hearings, which may not be unusual: a hearing as to liability and a hearing as to compensation. Has any thought been given to the proposition that the issues that you need to look at to determine liability may also be included in the issues you have to take into account in assessing compensation? You may have a hearing before the judges followed by a hearing before the registrars which really involve much of the same issues so, instead of shortening the whole process, the length of the whole process is increased by H75(aa)(ii).The other point I want to put on the record is: if big amounts were unconstitutional, then small amounts would be too. That is just a point I want to put on the record.16:25:005129Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—The determination of native title must be made by a judge—and I think that is probably appropriate in terms of Brandy in terms of acting judicially—but, as in many other matters of this kind, the subsequent question of compensation can be referred by the judge to a judicial registrar where the amount involved is likely to involve less than $100,000.It will work as many of these sorts of schemes do. Rather than the court itself, having made a determination, having to be preoccupied with the question of compensation, it can refer it to the registrar, which will hopefully be a speedier process. I do remind you that the current act, as approved by the Labor Party in the Senate, does make it clear that, in relation to any determination of compensation, there must be a current determination of native title being made or in place. So in that sense we are no different from the current scheme.16:26:005129Cooney, Sen BarneySenator COONEYSF4VICALP00—Can I explain what I mean. Say there is an issue whether there is native title in the sense of there being hunting rights over a particular area of land and the claimant goes through the evidence and establishes that a hunting right is established over a particular piece of land. When that liability is so decided, then you send it to the registrar for assessment of the damages. Isn't the registrar going to say, `What sort of hunting right was this? What was involved in this? When I am assessing compensation, I have to assess compensation in terms of what sorts of hunting rights they are'? So the issues that you have looked at in deciding liability are the very same issues as you look at in deciding damages. You are really just doubling up the whole process.16:27:005129Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—The court's job is to determine in accordance with traditional law and custom what the native title rights are in respect of the claimant group, but compensation only arises if there is any established impairment or extinguishment of that native title. That is the point. If you get a determination of your rights, you go ahead and exercise them. You seek compensation if you can establish that your native title rights have been impaired or affected in any way that would give rise to compensation.So, if a determination of the native title rights, what they consist of, how they are to be exercised, et cetera has been made and if the claimants then wish to seek to have a compensation order because they maintain that those rights as determined by the court have been impaired or affected in some way, then they need to make that case. But in this instance they can do it before a registrar.16:28:005130Cooney, Sen BarneySenator COONEYSF4VICALP00—I do not want to persist with this. I probably answered this by saying that perhaps it is for the court to decide, but it seems to me that at least some precedent has to be set as to how to attach compensation to the loss of rights. If you were planning the case, that issue would seem to me to involve many of the issues that you have already dealt with in determining whether or not the claimant has a right. If that is so, then I would have thought that there was a considerable risk that this provision is doubling the time rather than cutting it down.16:29:005130Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I guess it would vary from case to case. It may be that the Federal Court would hear concurrently evidence relating to impairment of the native title while it was hearing evidence relating to the question of whether they held native title, so that the compensation issue might flow very quickly out of that case.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Chapman)—The question is that the amendments not be insisted upon.Question resolved in the affirmative.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—We now move to representative bodies.16:30:005130Bolkus, Sen NickSenator BOLKUSXE4SAALP00—Before we get to that, I do not have an amendment in respect of the claims process and sunset clause, but I do want to raise a concern and put on the record that the package that has been agreed to between Senator Harradine and the government by way of government amendment H77 in the claims process section omits item 18 of schedule 5, but not item 19. Thus there is no time limit on an application for determination of compensation. But there is to be a cap on compensation set at the level of the freehold value of the land.This is an area where we could have put up an amendment but, given the reality of the numbers here, we have not done so. I do express the opposition's concern that a particularly important provision adopted in the debate in April this year has not been proceeded with. As a consequence of that, there will be once again a more tortuous process and a consequent degree of uncertainty.The next area that is before us relates to rep bodies. We are pressing a couple of amendments here. The package which has been presented to us produces government amendment H78, which is not attractive to the opposition. Government H78 inserted section 203FCA, which required a rep body, in performing its functions and exercising its powers, to 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 such material or any information in that material was to be dealt with.The terms `traditional custodian' and `traditional materials' are defined in section 203FCA(2). Opposition amendment N45, which was adopted by the Senate in the last debate, extended the requirement that rep bodies comply with the wishes of traditional custodians to former rep bodies transferring documents and records to new rep bodies. It also made the minister's power to give directions under section 203FC subject to the wishes of such traditional custodians of the knowledge. This conformed with opposition amendment 312.It is quite clear from the amendment which was adopted last time that opposition amendment N45 prevented the minister from making a direction that required the former rep body to act in contravention of its obligations to make such reasonable efforts to comply with the wishes of the traditional custodians in respect of those traditional materials.In April this year, the House of Representatives agreed to both of these Senate amendments. In July, however, the House of Representatives disagreed with them. Government amendment H79 is probably very similar in effect to H78. H79 allows the minister to make a direction that a rep body transfer documents and records notwithstanding the wishes of the traditional owners in respect of those materials.I now re-press opposition amendment N45. That provision protects the traditional role that such traditional owners have in respect of traditional material.We do not press an amendment in regard to the other concern that we have in this area, but I would like to place our concern on the record. It is in respect of a review of decisions to assist, as reflected in section 203FB. Government amendment 81 inserts a note in section 203FB which expresses the government's view that the decisions of rep bodies are subject to the Administrative Decisions (Judicial Review) Act. Amendment 81 was intended to exclude the judicial review of rep bodies' decisions. However, that amendment was rejected by the Senate. We opposed this amendment in April as a matter of principle and I indicate that we still oppose it. But, as I said, we will not be moving an amendment; we would just like our opposition placed on the record.The only amendment that we are pressing, therefore, relates to government amendment H78 and opposition N45. There may not need to be a long, extensive debate in respect of rep bodies, other than to focus on that amendment that we are pressing.16:35:005131Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—One of the significant advances in the whole Native Title Amendment Bill is the regime with respect to representative bodies which, by and large, does respond to the quite extensive report on representative bodies prepared under the auspices of the previous government which, fortunately, has received general assent from all quarters and I think will make a very big difference to the management of native title in years to come.The opposition is really starting to quibble here. The difference between the government and the opposition in relation to these amendments is tiny. It really comes down to the question of our amendment H79, which inserts section 203FCA in the bill, obliging rep bodies that are dealing with traditional materials or information contained in traditional materials to comply with the wishes of the custodians of that material. We have slightly amended it because doubt has been raised as to whether, as it is presently drafted in the bill, this obligation applies to a body that has been replaced as the rep body for an area but which continues to deal with traditional materials in the course of complying with directions made under section 203FC for the transfer of documents and records to the new or replacement rep body. The government amendment will ensure that the obligation to deal with traditional materials in accordance with the wishes of its custodians extends to a body that has ceased to be a rep body for an area but continues to deal with traditional materials because of directions made under 203FC.So what we are about is achieving the same effect, but more clearly and directly than in the way devised by the opposition. The difference is so marginal that I am a little surprised that the opposition would be insisting on the opposition amendment in place of the government amendment.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Chapman)—The question is that the amendment not be insisted upon.Question resolved in the affirmative.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—We now move to the registration test.16:38:005131Bolkus, Sen NickSenator BOLKUSXE4SAALP00—The registration test is an issue of concern. It is an issue that goes to one of the four so-called `fundamental sticking points' between the Senate and the House of Representatives before the arrangement between Senator Harradine and the government. In this area we have three or four concerns, but we are only moving an amendment in respect of the physical connection aspect of the registration test. We believe that government amendment H83, which is a product of the arrangement, reinstates the requirement that the registrar must be satisfied that one of the native title applicants currently has or previously had a traditional physical connection with any part of the area claimed or alternatively that one of the applicants previously had such a connection and would reasonably have been expected to maintain that connection but for the actions of governments or leaseholders—locked gates and so on.Government amendment H84 requires that the registrar inform native title applicants of their right to apply to the Federal Court for an order that the registrar accept their application for registration if the only reason for the registrar's decision not to register the application is the applicants' failure to meet the physical connection test. That is reflected in section 190D.Government amendment H85 provides that the Federal Court may order the National Native Title Tribunal to accept for registration an application which has failed the physical connection test if the court is satisfied that at least prima facie some of the native title rights claimed can be established and, further, that at least one parent of one member of the applicant group had a traditional physical connection with any part of the area claimed and would reasonably have been expected to maintain that physical connection but for the actions of governments or leaseholders. The court must allow all of the parties, including the non-indigenous people, an opportunity to be heard in the proceedings.Last week it was claimed that the registration test would accommodate one generation further back—it would accommodate two generations of indigenous interests. It was presented as if that would automatically be the case, and it was presented in a way that reflected the amendments that were accepted by this Senate in April this year. I do not think it is correct to say that, in an unqualified way, the government has agreed to extend the physical connection test back a generation. In fact, the government has given native title holders an option of being involved in protracted formal court proceedings against governments and mining companies just to get an application registered. That is the full effect of what we are talking about here—not clear-cut access if you are within those two generations, the principle that was accepted last time. We are talking here about the necessity to go through a protracted formal court proceeding.Senator Harradine says, `You are already registered as part of a court proceeding anyway; all you have to do is go back to it.' This going back to it is not as simple as it is presented. You do not just put a notice up on the court register or in the court file. You have to go through proceedings to get that second generation acknowledged in the process. It is not as simple as just reactivating a former court proceeding. It would involve protracted formal court proceedings and expense. It also has an unsignalled downside, one that, hopefully, in the course of this debate we might be able to resolve. In the absence of resolving it there is a massive injustice looming through this provision.The really cynical part of this exercise is that, if the registrar has not accepted a native title application within four months of the date of the government's notice of intention to grant a new interest, the native title holders miss out on the protection of the right to negotiate or its state equivalents, and they miss out on this altogether. The clock starts running from a particular time and if you do not get a court order within that four months then under the legislation as it reads at the moment a claimant will not be able to get the protection of the RTN if his or her case has not been settled and determined by the Federal Court within the period deemed by the legislation.Let us face it: contested court proceedings take years, not months, to resolve. It is unimaginable to us that this part of the compromise will be of practical benefit to anyone. Of course, I wait to be informed otherwise, but as the law now stands there is a capacity in the legislation for anyone objecting to a title claim to object formally in court—that particular process is available to them—and as a consequence of such there is the capacity to frustrate that second generation. That is why we are pursuing the amendment that was successful last time. That is why we are opposing government amendments H83, H84 and H85.We are also concerned about the prima facie test. The legislation passed through the parliament in April accepted that, in order to satisfy the prima facie test, only one native title right be established to a prima facie level before an application could be registered and the right to negotiate and other statutory protections assured. That has been changed and will now read that `some of the native title rights and interests claimed' must be established. We do not see why there is a need for that.There is also concern as to the government's insistence about the registrar relying on adverse material. Where the registrar intends to rely on information adverse to the interests of native title applicants in forming a view about the merits of their application, under the pre-existing legislation the registrar had an obligation to give applicants an opportunity to respond to such information. That was adopted by section 190B. Under the package that is presented to us, that obligation is no longer there. So what we are doing is denying natural justice to native title holders. It is of concern. As I said, it is almost a futile process to bowl up amendments in this third part of the Wik debate, but we do want to place on the record the fact that that is another injustice.The other concern we have is in respect of the reconsideration of pre-27 June 1996 applications by the registrar. Government amendment H86 requires the registrar to apply the new registration test within one year to all native title applications lodged before 27 June 1996 where any part of the application was over either freehold estate or a non-mining lease. What the government is doing here is amending its own bill, a bill which currently requires the registrar to consider all such applications over non-exclusive agricultural leases or non-exclusive pastoral leases. The government's amendment widens the net considerably and imposes significant new burdens on the resources of the tribunal.As I said, of all those amendments, the one that concerns us the most is the one that attempts to cover and accommodate the second generation. We believe it does not do so sufficiently. It does not do so in a manner that is available to government. We do not know why you would want to take this option of making those people go through a court process in the Federal Court system to prove a case. All you are really doing there is subjecting not just the claimants but the other stakeholders to lengthy and expensive court processes. We believe this is basically moti vated by an objective to frustrate and we do not believe that objective is appropriate here. That is why we are concentrating on that particular amendment.16:48:005133Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—The government, as is known to the chamber, believes that one of the most important things that must be done with this Native Title Act is to put in place an effective registration test. That was one of the first things said to me by Noel Pearson, let alone Sugar Ray Robinson and others, when we first embarked on this exercise over two years ago. They said that the major failing of the current Native Title Act—not necessarily by design but as a result of various court cases and interpretations of the act—was that there was effectively no registration test and we were getting this myriad of competing and conflicting ambit claims which were bringing the whole process into disrepute.We have worked long and hard to get this legislation right. We have modified it and pushed and shoved it. We have been very responsive to propositions put to us from all quarters about the test. In many ways, it is not as strict as was contemplated by the government back in 1996 when we were first devising what was the most important thing—a new registration test.In this one area of the registration of claims, in order to gain the considerable benefits of registration, we must remember that there is nothing to prevent common law claims being pursued through the normal court processes that do not involve this registration test at all. This is not a test for seeking a determination that you hold native title. It is a test in order to gain the considerable statutory benefits that accrue to a registered claimant under the Native Title Act. Therefore, it is perfectly proper that only those claims which are more than likely to result in determinations should pass through the test. We have put in place the most minimal physical connection test imaginable—that is, as long as just one member of the claim group has or indeed had a physical connection to the area claimed at some stage in their life, and if all the other requirements of the test are met, the claim can be registered.We have positively responded to the concerns which Senator Harradine has expressed very strongly about the consequences for those claim groups where there were circumstances which prevented the claimants being able to establish that, in the lifetime of any one of the claim group, there was such a physical connection. In response to that, we have devised a mechanism whereby people in that situation can apply to the Federal Court and, if they can satisfy the court that a parent of one of the members of the claim group had that physical connection and that it was severed by virtue of government action or action of a third party, and where the court is satisfied that they have made out their prima facie case and have satisfied the other requirements of the test, then the court can order that the claim be registered.That is, from the government's point of view, a significant accommodation of the concerns which Senator Harradine has made abundantly clear in debates on this bill over the course of the last six or seven months. We have devised a mechanism which we believe does reasonably and properly accommodate those concerns, while maintaining the essential integrity of the registration test which, as I said, we think is very important to maintain in order to preserve confidence in the overall native title processes. As I said, this is very much in response to the concerns expressed to us from a very early stage by indigenous groups themselves.So we do think that, firstly, the test is the right one and, secondly, this is a sensible accommodation that we have made and that, I would have thought, the Senate would welcome. Some comment was made about the difficulties or time delays involved for those who need to seek to satisfy the court of this matter. Of course, there is no reason why—and nor would I encourage this—people in this situation should wait until a section 29 notice has been issued in order for them to seek to have a claim registered.There is nothing at all to stop claimants seeking to have claims registered whenever they so choose. There is no reason to wait for a proposed action to take place on the land to which they would seek to respond in order to be registered in order to get the right to negotiate. I imagine that claims will go on being made, and not in response to section 29 notices. But, in future, to be registered, they will need to comply with these requirements.So, if they fall into the category that is affected by this particular provision, obviously they would want to make their claim immediately in the event that they need to go through this mechanism of establishing to the Federal Court's satisfaction that they fall within this exception and can have their claim registered nevertheless, remembering that we are talking about the fact that a considerable proportion of Australia is already under claim and there are a huge number of claims before the registrar already. So we do think this is an honourable, sensible, practical and workable accommodation of the very sincere concern that Senator Harradine has for claimants who may be in this position.16:54:005134Brown, Sen BobSenator BROWNQD4TASAG00—I heard the Deputy Prime Minister (Mr Tim Fischer) the other night saying that the new provisions would effectively consign some hundreds of potential claims to the dustbin. I ask the minister, or Senator Harradine: which of the claims was he referring to there when assuring non-Aboriginal people that they were going to be saved from so many claims? I want to establish for the committee the range of indigenous groups that have been, or through this process are being, denied access to claims who otherwise would have got it.16:55:005134Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I reiterate that nothing in this registration test prevents claimants making a normal application for a determination of native title. There is a separate application mechanism with far lower threshold requirements. If what is sought is a determination of native title, you follow the application route. However, if the applicants wish to avail themselves of the considerable statutory benefits of registration, they need to have their claim registered.The Deputy Prime Minister (Mr Tim Fischer) was referring to the very issues to which indigenous leaders have constantly referred, that is, the great problems they face as representative bodies and leaders of the indigenous community in dealing with a considerable number of conflicting, overlapping and, in many cases, from their point of view, frivolous or vexatious claims—competing claims being made by a single family where one member of the family is making a claim and another member of the family is making a competing claim. That is something that does concern the indigenous community considerably.As I say, they have been leading the cause of seeking a satisfactory and much more rigorous registration test to prevent what is the case and has to be admitted—that is, that a number of claims in certain parts of the country are causing division within indigenous communities. I cannot tell you which claims. It is a matter for the registrar to apply this test. We think it is a fair test. I am sure many claims will meet the test, and some will not, but it is essential to the proper management of native title to ensure that the considerable statutory benefits accrue to those claims.Remember: we are talking about claims, not determined holders here. We are talking about people who are making a claim who have not yet had a determination, but these statutory benefits accrue even where they have not had a determination. They should be able to establish the sorts of facts which this registration seeks so that we are dealing with the genuine claims and those most likely to result, ultimately, in a determination that the claimants actually hold native title.16:58:005135Brown, Sen BobSenator BROWNQD4TASAG00—There is one thing I do not like to hear—that is, the government or Senator Harradine using the words of indigenous people to put forward arguments which are against the indigenous interests. It does tend to crop up as we go along, and I think it is a pretty poor way of presenting the case.I did not ask Senator Minchin about what indigenous people were saying. I can tell him that, before the night is out, there will be an effort by indigenous people in this vacuum to put on record how they feel about the process that is occurring here. Let us wait for that.I did ask the minister for some specific evaluation, some analysis, to be given to the committee about what the Deputy Prime Minister (Mr Tim Fischer) said. He said that hundreds of potential claims, effectively, would be put in the dustbin as a result of this. I wondered how he came by those figures and exactly how he came to that conclusion. The minister did not tell me that, Mr Chairman. I wonder if he could tell me that, or was it just a case of the Deputy Prime Minister talking through his Akubra?16:59:005135Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—The Deputy Prime Minister, Mr Tim Fischer, is a fine man and a proud wearer of an Akubra—a great Australian product and very helpful in preventing skin cancer. I did not give Mr Fischer that figure. I have not seen what he said; I am taking your word for it. But I am happy to try to find out what he meant by that.We have certainly made no attempt to estimate how many of those claims that are currently before the registrar may not pass this registration test. That is an impossible thing to do. If I may say things from the point of view of the indigenous community; I did not realise Senator Brown had a complete monopoly on expressing an indigenous point of view. Obviously from evidence we have received anecdotally, and from the point of view of the indigenous community, the indigenous people are concerned by the number of claims that have been made and that they believe to be frivolous, vexatious and without substance. I have no idea of the quantum, nor have we, as a government, set out in any way to have some sort of arbitrary figure in mind. What the Deputy Prime Minister may or may not have said on that matter `on the hustings' is a matter for him. But the question of which claims will remain on the register will be a matter for the registrar applying this new registration test.17:01:005135Brown, Sen BobSenator BROWNQD4TASAG00—An opinion on this section which the Noongar Land Council of Western Australia and the Aboriginal Legal Service of Western Australia have given to various members on both sides, referring to this particular amendment, states:This Amendment deletes the requirement to make application to a Court where the physical connection test is failed. It vests in the Registrar power to accept a claim for registration in the same circumstances where a Court application and order would otherwise be required by the H84 and H85 amendments.They, of course, are the ones we are now entertaining. Here is the comment:There is no good reason why such a decision should be a judicial decision of a Court rather than an administrative decision of the Registrar.These amendments—put forward by the government and Senator Harradine—if they continued to require a Court application and hearing, would be unworkable, in that they would for all practical purposes add several months and significant expense to the Registration process in circumstances where the future act which may have precipitated the Native Title application may have already occurred.The representatives from Western Australia are saying that the amendments from Senator Harradine and the government raise the bar. The amendments just make it harder for indigenous people again because they say, `Don't allow the registrar to make the determination, make them go to court.' Madam Temporary Chairman, you know what that entails for people who are ranged up against vested interests: it entails a lot of money, it entails a lot of time, it entails finding legal representation, and it adds a lot of time to the process—it always does. The question they are asking is: why can't this determination be left to the registrar? It seems that it is an exercise in weighing the advantage against the indigenous people.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Reynolds)—The question is that the committee does not insist on opposition amendment N36, as amended by opposition amendment N37.17:04:005136Brown, Sen BobSenator BROWNQD4TASAG00—I wonder whether the leader would take the opportunity of answering the proposition I put forward just before we vote on this.17:04:005136Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I am happy to oblige Senator Brown, although I point out that I am not the leader. All I can say is that the government has decided, after consultation with Senator Harradine, that the registration test per se as applied by the registrar will stand. But, in order to accommodate his concerns, we will provide a mechanism whereby the claimants who are not able to get registered by virtue of the so-called physical connection test—remembering that this whole matter is before the Federal Court anyway, because it is part of an application for a determination that the claimants hold native title—can seek in the interim to have the court place their claim on the register. This is despite the fact that they have not passed the registration test as prescribed.It is by way of an appeal, so it does not make any sense to appeal to the person who, by virtue of the provisions in the act, is not able to register you. It is providing an appeal mechanism against the registrar's decision that, in accordance with the registration test, the claim could not be registered. We are putting in place a mechanism that was not there before to enable the claimants to go to the next point in the system—and that is the court itself which, in any event, the claim is before by way of an appeal—to have their claim registered. This is despite the fact that, on that ground alone, they have not been able to pass the registration test. It would not make any sense to appeal to the person who is administratively bound to apply the registration test.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—The question is that the committee does not insist on opposition amendment N36, as amended by opposition amendment N37. Question put.17:10:00The committee divided. 0Abetz, E. Boswell, R. L. D.Brownhill, D. G. C. Calvert, P. H.Chapman, H. G. P. Colston, M. A.Coonan, H. Crane, W.Eggleston, A. Ellison, C.Ferguson, A. B. Ferris, J.Gibson, B. F. Harradine, B.Heffernan, W. Herron, J.Hill, R. M. 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.0Allison, L. Bartlett, A. J. J.Bishop, M. Bolkus, N.Bourne, V. Brown, B.Carr, K. Collins, J. M. A.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.Mackay, S. Margetts, D.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.Alston, R. K. R. Stott Despoja, N.Campbell, I. G. Campbell, G.Kemp, R. Conroy, S.MacGibbon, D. J. McKiernan, J. P.Newman, J. M. Murphy, S. M.* denotes tellerQuestion so resolved in the affirmative.10000CHAIRMANThe CHAIRMAN—The next issue to be debated is the right to negotiate.17:13:005137Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I think we have probably come close to the end of the debate this time, although Senator Brown indicated a little while ago that there are one or two other issues that will be raised before we conclude the debate.In respect of the right to negotiate, let us acknowledge that this was the critical part of the debate the first time and the second time, as it is now, of course, this third time as we tackle the issue. It probably needs to be said that it will not be the last time this parliament will be addressing the issue of the right to negotiate; that as cases flow through to the courts, as problems are raised—as problems of fairness, compensation and discrimination are tackled in the courts—we will keep looking back to the right to negotiate as an important aspect of the trade-off that was reached after the Mabo No. 2 case in 1993.We have here undoubtedly the most critical and most complex aspect of the Native Title Amendment Bill. I would like to make some general comments now, and later on in the debate go particularly to the alternative scheme as embodied in section 43A and also to section 26A and how that impacts on the right to negotiate. As has been said consistently by non-government speakers, native title as a concept is an empty shell without one's means to access it, to enjoy it and to defend or negotiate its existence into tangible benefits.In this package, not only do we have heritage protection giving lip-service to native title but when it comes to the right to negotiate those opposite seem to have some objection to an economic perspective and dimension to that right. Even in the particularly narrow circumstances of mining, such a proposition is deemed to be anathema in the package before us today. That notion much favoured by those opposite of equivalent rights for all Australians is, indeed, selectively honoured in this bill.We are all aware of the importance of the family home—the average Australian's castle. It is a central element of mainstream culture. It is the repository of precious artefacts. It is the site of many or most of our important rituals. In many ways, it is symbolic of our sense of identity and our place in the order of things—a bit like indigenous Australians and their connection with the land really. What support did those opposite have for suggesting that native title could threaten that bastion, that family home, that cultural icon? How well we remember the calls from conservative politicians that we needed to protect and defend our backyards.Let us look again at that family home. We can mortgage it to raise investment or busi ness funds or to pay bills, we can sell it for capital gain or we can rent it out for extra income. None of these things we see as objectionable when it comes to us, none of these things would be seen to detract from the spiritual or cultural significance of our homes and our value system, but this bill seeks to expunge any area where native title could be negotiated for economic benefit. The potential for economic empowerment is officially frowned upon.So we return to the welfare model whereby indigenous Australians must take with gratitude that which is given them. Instead of going down the road of self-development and empowerment, what we will do here, in accepting the package agreed to by the government and Senator Harradine, is lock them into processes where they must deal with government ministers or their staff and seek favours off the official tables. They will need to do that to deal with the daily realities of trying to preserve or enjoy any of the residual native title rights that may have survived to this day.As in the days of old, many of their dealings with this new order of things will bring the rule of law into disrepute in their eyes. The state minister dealing in their property rights must put up with, I suppose you could call it, the inconvenience of an independent body being able to vary their decision. But it is only an inconvenience; it is that same minister to whom this place is about to give the power to overrule the independent body. So much for procedural fairness. So much for that rule of law.It is interesting to note that they have pulled the plug in many respects on this process. Some are here, and we should acknowledge their presence; some have decided—and I think they have done this in a cooperative arrangement—that this process is not really worth respecting with their presence, and we acknowledge that attitude as well. But for them, whether they are here or not, whether they are in the leadership or not, it will be a case of `back to John Howard's good old days'—back to the common law, back to common law remedies which cost money, and only cases with an identifiable and significant economic benefit attached to them will ever be able to be pursued. The 1,001 small daily possibilities will remain in theory and never enjoyed because there is no empowering right to negotiate or its equivalent to access and preserve them. And when they do get a decision through the courts, and when they do expect that decision to have general application, either they will find governments coming back into parliaments and overruling it in the way they have done in recent years or they will find that the administration will not implement it as a general rule. When you toss that dilemma in with this government's proposals to wind back admin review, once again they will be back to pecking the crumbs off the official table again.Doesn't the Croker Island case give us an immediate contemporary reference on which to focus our concerns? It is arguable that the majority of indigenous Australians still living according to or close to the traditions and ways that existed before European settlement are in fact sea people. Their means of subsistence, their belief systems, their ceremonies, their rituals, their stories and songs focus wholly or in part on the sea, its shoreline and the area between high and low watermarks. In short, its significance is essential to their sense of being, their means of existence and life view as land is to an indigenous person of the desert. The native title rights of sea peoples, which in the Croker judgment have been found to continue to exist, include the right to visit and to protect places which are of cultural and spiritual importance. This bill, within 24 hours of that Croker Island decision, strips away the existing means of protection available in the Native Title Act. The package before us today discards further measures, passed in this place in April, to pay at least some respect.Greens (WA) amendments 268 and 270 are no longer being proceeded with. The only means available to protect this identified property right is, as I say, now the common law. So we are going to have a situation now where we have two classes: those related to land and those related to sea. Having succeeded in widening the gap between indigenous and non-indigenous Australians dealing in and disposing of property and property rights in a discriminatory manner, the government and Senator Harradine have created two classes of indigenous people before the law. They now offer an admittedly inadequate regime for the protection of the rights of people whose culture is land based and virtually no protection or respect for sea peoples.The fact is that we have already failed in respect of this matter. The rights of sea people were always `a bridge too far' for this Senate. Despite giving intellectual assent to the arguments, Senator Harradine was one who could not bring himself to support those of us who sought to retain the right to negotiate over the intertidal zone or to have decent procedural rights over waters. Unfortunately, we could not get that amendment up in April, and we cannot get it up now. The fact that our measures were defeated in December and April makes it procedurally difficult to revive them now and, forgetting the procedures, also makes it practically impossible to revive them now.I turn to some of the negotiations that have been referred to in some of the deliberations that led to the package before us. It is worth noting that indigenous Australians had no right to negotiate the package before us, and there is no right to negotiate left in respect of many aspects of the package in this particular bill. There are alternative rights and there is some application of the right to negotiate, but let's face it: the right to negotiate is being stripped away in this legislation.Much has been said in the press and in the gallery about negotiations designed to shape a workable Native Title Amendment Bill and, in some respects, the traditions of protocol of this place are such that one is loath to breach the confidences intrinsic to that process. But let us remember that there will always be other bills before us, that there will be more negotiations that need to take place, and that those negotiations will need to take place in good faith and in confidence.Over the last week or so, many of these protocols have been honoured more in the breach. I turn briefly, for instance, to the frequently asserted claim that the new procedural measures in section 43A were `the work of Labor lawyers'. This story has had a fairly good run. It has been protected by attitudes to confidentiality of negotiations leading up to the April sittings on the bill, but the lawyers or lawyer usually identified in these background briefings were never at any time engaged by the ALP. We did, however, frequently seek advice as to the National Indigenous Working Group. They did, just as we did, approach negotiations on a without prejudice basis. They—and we—looked at all possible ways to solve the differences between the government and ourselves. We proceeded in good faith. Government officers and our staff agreed that all possible solutions should be investigated, and amendments were drafted independently of each other and jointly, in some circumstances, for discussion.The section 43A proposal was never presented by anyone as a linchpin. That argument on the point must logically lead to the acceptance of a particular confirmation of the bill as a whole. It so happens that proposals drafted by officers on section 43A were expressly rejected by both the working group and by the ALP leadership. It was not acceptable in its April form and it is not acceptable now. I put on the record that I did inform all sides of the debate of this in April. I would also add at this point that although something was conceived of in April, it has changed in many ways since April, and that is why I say it is even less acceptable now.We are here now debating the motion from the House of Representatives to finally determine the right to negotiate in the Native Title Bill as a whole. I believe the package fails the acid test. Contrary to our responsibility to this place to achieve constitutional legislation, I think we fail that test as well. I believe the package is riddled with negative, incidental consequences intended or not intended at all. As I said yesterday, I believe that Senator Harradine and his advisers have proceeded with good intentions to try to get a positive outcome. I do distinguish greatly between the motivation of Senator Harradine and his advisers and the motivation of the government, but I add that a more inclusive process would have overcome many of the problems that we have now.There are particular aspects of this legislation that need to be addressed. Section 43A is one and, in a later stage of this discussion, I will go to some particularly difficult aspects of section 43A. We are concerned about removal of the right to negotiate in respect of towns and cities and we are concerned about how reserves are affected and how historic leases are now exempted from the right to negotiate. We are talking about a massive array of land that will no longer be subject to the RTN. And all of this was done without decent consultations with indigenous Australians.Those are not the only concerns we have with this legislation. There are concerns as to time lines in section 43A. We are concerned about how exploration is handled, we are concerned with how waters are handled and we are concerned about the whole concept of negotiations in section 33 and section 39. As we go through this in the next hour or two, I will raise particular points in respect of those. In this category, the opposition is moving a recommittal of the amendments that were accepted by this chamber last year, and we will move all of them but for 268 and 270. Those will be moved by Senator Woodley, and they relate to the issue of water.17:28:005140Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I appreciate that this has always been, as Senator Bolkus said, the most controversial aspect of the Native Title Act and the amendments thereto, and it is the most difficult to deal with. Ironically, it does not relate directly to native title per se but to the procedural rights which attach to native title, so it is odd that it is the subject of the most heated debate—what are the procedural rights that attach, not the nature of the rights themselves. The High Court, in the Mabo and Wik decisions, is absolutely silent on this issue. We are not dealing with common law rights here at all; we are dealing with a statutorily created set of rights which flowed out of the debacle the Senate saw in 1993 when the Native Title Act was created.I do think it is worth remembering the history of this matter. In the Native Title Act itself, one of the decisions that had to be made by that government—and has had to be made by our government—is what procedural rights attach to different types of native title and different types of land. As I said before, the fundamental premise of the Keating government—acting clearly on the presumption that native title could only exist on vacant crown land and not on pastoral leases, and therefore native title might amount up to and including an equivalent of the highest estate in land that we know, which is freehold title—made it clear that the procedural rights that should attach to native title onshore should be those attaching to ordinary title holders, but offshore there should be corresponding procedural rights, that is, the procedural rights attaching to corresponding property rights.Senator Bolkus was attacking us as having different classes of native title holders. The current act already sets up a mechanism whereby there are different procedural rights for different classes of native title holders. Those offshore get so-called corresponding or equivalent procedural rights. Those onshore basically get the rights of an ordinary titleholder, that is on the presumption there was no native title on pastoral leases. Then native title holders get another class of rights—that is, in addition to the rights of ordinary titleholders, they get this so-called right to negotiate, which the Keating government created, and which was to apply where what was proposed on native title land, that is, onshore, was mining or a compulsory acquisition. That is a furphy. The current act does contemplate several classes of procedural rights for various types of native title, depending on what the activity proposed is and where the native title is held.Unlike the Keating government, we had to face the reality of the Wik decision which found, contrary to the view of the Keating government and the premise of the Native Title Act, that native title may survive on pastoral leases. It is possible. There is no determined native title yet on any pastoral leases, but it is possible that native title may have survived. Therefore, afresh we must address the question of what procedural rights should attach as a matter of statutory law to any native title that may have survived on a pastoral lease, remembering that at common law there is no automatic procedural right attaching.From the government's point of view, in relation to pastoral leases, we are clearly talking about a quantum of native title rights which are less than the rights that may survive on vacant crown land where it could amount to an estate up to exclusive possession or equivalent, but obviously, by definition, native title on a pastoral lease cannot ever amount to exclusive possession. They are rights that are subject to the statutory rights issued under the lease. So there is that point. Remember the nature of native title on a pastoral lease.Also remember the other point, which I just mentioned, that the native title rights by law, as declared by the High Court in Wik, are subject rights. The statutory rights of the lessee prevail over those native title rights. The High Court declared there to be a hierarchy of rights with statutory rights prevailing over common law rights, which is a fundamental premise of our whole legal system. It has nothing to do with the race of who holds those rights but a fundamental premise that statutory rights always prevail over common law rights.The government also had to face the fact—and this I accept could only be unbeknown to the Keating government when it created this so-called right to negotiate—that it was a very difficult, complex and, in many ways, unworkable system which the Commonwealth created. And it was imposed on them without any consultation—and much is made about lack of consultation—with the sovereign governments in this country, which are responsible for land management—the most significant and far reaching intervention ever made by the Commonwealth into the land management functions of the states. As admitted by ATSIC itself, it is an extremely difficult process which is causing huge delays and difficulties for a whole range of activity in this country.What was being contemplated, by virtue of the Wik decision, was the right to negotiate applying in a way that the Keating government never contemplated—that is, applying not just to the 40 per cent of Australia where we thought native title may have survived but to the 79 per cent of Australia where native title may have survived as a consequence of the Wik decision. In other words, virtually everything you may want to do in Australia involving development or mining is getting caught up in the right to negotiate process which, contrary to the expectations of the Keating government with pretty time lines and everything, is taking years. Simple mining applications can take up to three years to get through this unbelievable logjam. I have quoted many times the statistics in Western Australia, our most active mining state with the most mining claims, where the backlog of mining applications is becoming absolutely and utterly unmanageable because of having to go through this procedural process.There is nothing sacrosanct in that sense about it. It was a mechanism dreamed up by, put in place by and created by the Keating government as a particular statutory process to go through. It is nothing magical. It was never referred to, created by or part of the Mabo and Wik decisions. Under the original Native Title Act, which quite clearly was designed on the basis that there was no native title on pastoral leases, there was no right to negotiate on pastoral leases. This is an unintended consequence of the Wik decision. For all the reasons I have described, the government has made the decision that state governments should be able to put in place processes which ensure that the procedural rights attaching to native title on pastoral leases shall equate to the procedural rights attaching to the holder of the statutory lease.That was our original proposition. If a state government wished to put in place alternative procedural rights, it would have to satisfy the Commonwealth that it had a scheme whereby the native title holders or claimants had at least the same procedural rights as the state granted to pastoral lessees in respect of those activities that triggered the right to negotiate in the first place under the Native Title Act—that is, a right to mining and a compulsory acquisition. That was the scheme, and that was based on the sort of premise as I have mentioned before as well as the very obvious premise that it is no good for Australia, for reconciliation or for the sharing of land if you have a hierarchy of procedural rights that is the complete reverse of the hierarchy of property rights as declared by the High Court in the Wik judgment.We are not proposing a hierarchy of procedural rights that reflects the hierarchy of property rights as declared by the High Court. We are, in fact, stipulating that, if there is to be a movement from the right to negotiate, the procedural rights must be equivalent. Even though the High Court has said that the statutory rights of the pastoral lessee prevail over the native title, we are not saying that the procedural rights of the lessee should prevail or be greater than; we are saying that they should be the same—equivalent procedural rights.In response to the arguments put by Senator Harradine and his advisers, we have done a lot of work to spell out what those procedural rights should be, when you compare it with the bill as previously presented to the Senate in December and April, to a great extent to accommodate what would be the arguments put by the indigenous leadership to ensure that, in pursuing equivalent procedural rights, those rights are spelt out, that they are required to take account of the particular interests of native title holders and to ensure due process.So the provisions now, as a result of what was put to us by Senator Harradine—reflecting his concern to ensure that states did ensure due process and a proper set of procedural rights for native title claimants on pastoral leases in particular—do go to great lengths to grant those procedural rights which, as I say, are not a function of the High Court's decisions, are not a function of the common law of native title, but will be required of the Commonwealth for any state that wants to put in an alternative mechanism. They do require proper notice, a proper consultation process, a proper right to object to an impartial body and may be overridden by any state government only in particular circumstances.Those are the rights that are generally held by other property holders in Australia. I think they are fundamental to our integrating native title into our property system, as we are doing, which is a requirement of us, and which is the healthy response to the Mabo and Wik decisions. If we are properly to integrate native title into our land management system in a way that actually works, is workable and contributes to the process of reconciliation, then I think it is very important to accept this.The farming community originally came to the table on the Native Title Act on the premise and the promises that native title did not apply on pastoral leases. That assurance was repeatedly given by the previous government and by some indigenous leaders at the time. The farming community, by virtue of what we have had to say to them, have had to accept that the world has changed—that native title can survive on pastoral leases. We have made it clear that we accept that the world has changed, and we have persuaded the farmers of Australia to accept that the world has changed. We have also persuaded them that they should accept that native title holders on pastoral leases should have the same procedural rights that they have with respect to mining and compulsory acquisitions.I think this is a very fair, honourable, workable and practical way now to proceed together, both lessees and native title property holders, as a consequence of the Wik decision. I do urge the Senate to accept the propositions put before it and to accept that we have moved quite a lot to accommodate Senator Harradine's genuine concerns to ensure that the requirements in the alternative procedural rights are spelt out, are substantial and do pay due regard to the particular property rights of native title holders.17:42:005142Brown, Sen BobSenator BROWNQD4TASAG00—The minister asks us to accept some of the most unfair and discriminatory legislation that I guess we will ever see before this place. He adds words like `fair' and `honourable' and so on that Senator Harradine also adds onto this discriminatory legislation. But that does not change it one iota. The minister says that everybody is going to have similar procedural rights under this legislation. I ask: is there a difference between the Sultan of Brunei and Kerry Packer, leaseholders over Fairfax of Australia, and the indigenous people who have been in this country for longer than we can imagine? `No,' says the government, `they all should have the same rights under the statutory law that we're imposing on the common law which recognised that the indigenous people were, and always have been, the prior owners.' It is not a new circumstance. It is just that indigenous people's rights have been, in effect, held from them for so long that we have come to believe through this debate that somehow or other they are being given something new here.What should be occurring is that the taking away should be stopping, but it is not. That is because of the government's attitude that big mining and pastoral corporations have the same right on the land as the indigenous people. I can tell you the difference between the Sultan of Brunei, Kerry Packer and the indigenous people, who have the same rights: the first two are multibillionaires; the other lot are amongst the poorest people in this country. The poorest group of people in this country are the first Australians.JX4MINCHINSenator Minchin—What about me, Bob?QD4Brown, Sen BobSenator BROWN—That is a flippant remark, Senator. If you want to swap your circumstances and your land with some of the indigenous people in this country, then that would be an honourable thing to do. But you are not going to. The fact is that, when it comes to these tribunals, courts and processes, what we have here is the loading, in a terrible fashion, of the odds against the indigenous people. Madam Temporary Chairman, you would know, as we all do, that in the courts and tribunals it is the wealthy who have the advantage. To put the words `fair', `decent' or `honourable' onto this process is, I think, unspeakable.What is happening here is that the right to negotiate is being reduced. Let me go back to the point I made last night. Let us stand back from this for a moment, get our head out of the angels that Senator Harradine says are to be found in the detail and look at the broad picture. Let us compare ourselves with Canada. In Canada, as of 1 April next year, the state of Nunavut, the eastern part of the former North-West Territories, will become a sovereign state in the terms that Senator Minchin used just a moment ago, with the majority of indigenous people, the Inuit, totally in control of their affairs, their land, their health and their education. How far from that are we in Australia? It is not even within the bounds of thinking in the current debate in this country that such a decent and honourable treaty should be made with the indigenous people of Cape York or the Kimberley or Arnhem Land and that the rights that go with statehood in those circumstances should be given to the indigenous majority in those parts of Australia.In 1974 Justice Woodward pointed out in the findings of his royal commission—and Senator Harradine quoted Justice Woodward in this respect as late as last December—that you cannot really entertain the concept of land rights in this country unless you entertain the concept of a veto by indigenous people as to what happens on their land. How far have we gone backwards since then? It was held that the next stage down the scale as we sink deeper and deeper into this thievery of indigenous people's rights was the right to negotiate—no veto but at least a determined effort to reach a negotiated agreement on the traditional owner's land when it comes to developments which will change that land and, by the very changes that those developments make, take away the indigenous people's right to honour, enjoy, experience and gain from that land or those seas in the way they always have.What we find is that we have gone even further down the scale after the behind doors negotiations between Senator Harradine and the government in the last few weeks with the indigenous people locked out. The right to have a negotiating say in a whole range of developments, such as cotton growing or woodchipping of woodlands or deep sea fisheries or oil drilling or quarries, which had already been taken away in previous sessions in this place, is still banished. The right to negotiate over mining—a minor land use in terms of changing the face of the indigenous people's country but a major one in terms of monetary outcomes—is now effectively to be taken away as well.Senator Minchin shakes his head, but when I see hidden in this new section 43A that the states and territories will be able to set up provisions which end up in the mining warden's courts, as the Prime Minister (Mr Howard) put it the other night, I know what is going to happen. The miners are going to have their way, by and large, at the expense of the indigenous people. There is a backstop to that if they do not have their way. That is, the minister for mines in these states and territories can overrule a mining warden's court or other independent tribunal if it does rule in favour of indigenous people and allow the development to go ahead anyway.All this is set up under a fairly complex mechanism, as Senator Minchin said, as long as in the opinion of the Commonwealth minister it is okay. Do you think that the opinion of Senator Parer or Senator Hill or Mr Anderson or the Prime Minister is going to give the indigenous people the feeling that they are going to get a fair go? Of course they are not. All this is wish and wash which allows the indigenous people's rights to at one stage or another be undermined by the power of the mining lobby, and that is a very powerful lobby in this place. One only has to look at the hundreds of thousands if not millions of dollars going into the election coffers of the big parties in this place to understand the disadvantage of the indigenous people and to understand the advantage of the miners.I would ask, if there was any point to it, how involved in the drawing up of this legislation were the legal advisers retained by the mining corporations. But I will not get a straight answer to that. However, I can guarantee the Senate that they had a big influence; that they have been in the Prime Minister's office and elsewhere when the indigenous people have been locked out, giving advice as to how the barriers might be lowered for the mining corporations, including corporations which have headquarters outside this country, while the barriers were raised against the interests of the indigenous people.Yesterday there was a finding by the courts following an application by the Croker Island people. Basically, the claim of those people to the sea, including the bed of the sea, has been recognised. But, if I read it correctly, their rights to the fisheries which have sustained them for a long time—beyond our limited way of measuring history—have not been guaranteed at all. So those who mine for fish are going to in the future have the advantage. They are going to be able to impress governments and tribunals all the way to the point where it is possible that the native fisheries will be but a shadow of the past and certainly where it will put the odds in favour of fishing corporations and the Stock Exchange ahead of the rights of the indigenous people to fish, enjoy and commune with their country as they have done throughout the past.So we are back here discussing this again. Senator Harradine spoke about this on 8 April this year and said that he would oppose section 43A as it stood then because he believed it was unacceptable. He said:Native title holders whose lands are subject to pastoral lease, included in a national park or subject to Aboriginal statutory grants, should not be deprived of the right to negotiate. As I think I said on a previous occasion, in respect of the existence of native title and determined native title holders, it is of very little use to be a native title holder unless there is a right to negotiate, and an effective right to negotiate in respect of the specific interests and rights of those particular holders.What a pretty past we see now. What a change we see. Where is the effective right that was being defended as recently as last April? Words fail to describe the sell-out that is involved here. Effective right, my foot! An effective robbery of rights, yes, but an effective standing up for rights, no, not at all.The numbers are there for this pact by Senator Harradine and Prime Minister Howard to get through. The numbers are there for this parliament to put its approval on the theft of the rights of the indigenous people to negotiate. It is the same as the theft of the veto right to projects which damage their cultural rights and their interests in the land. They have been waived, not even entertained, by parliamentary considerations in the recent past.17:56:005145Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—The Democrats, as indicated by Senator Bolkus, certainly want to press our amendments: Democrats-Greens (WA) amendments Nos 268 and 270. I want to speak specifically to those. They are a limited recognition of the Croker Island decision yesterday because they deal simply with a definition which limits native title rights, particularly the right to negotiate over the intertidal zone. We press these amendments because symbolically they do give at least some recognition to the Federal Court decision yesterday. We hope that, at least in those instances, the government, Senator Harradine and others might recognise that there needs to be recognition that yesterday there was a Federal Court decision.I do have some questions for the minister. Perhaps if I put those within the speech I am making now, he may be able to respond. The first question is to do with this whole issue of the right to negotiate. If any other sticking point is significant, this one is absolutely fundamental. This is the most significant sticking point, I believe, that was identified by the government. The government having secured almost totally its Wik 10-point legislation, we now have a declaration that there was no need for a race based double dissolution election. I wonder whether the minister would like to comment on that and say whether or not we are to have a double dissolution election on any other basis.It would be of use to this chamber to have that question answered because we cannot continue to keep the people of Australia in this kind of tension. I believe that was a threat to the Senate—`If you do not adopt the Wik 10-point plan legislation, then there will be a race based double dissolution election.' That seemed to be the major point that was made in the media over and over again. So I am asking the minister whether he is prepared, on behalf of the government, to endorse Senator Harradine's assertion that, if this bill is passed, there will not be a double dissolution election.I think it would be useful to receive from the minister some indication at this point about this, otherwise what have we been doing for the last couple of days? There are other triggers for a double dissolution election, so I think it would be useful for the people of Australia, for the Senate, for the parliament and for all of us to know whether or not we are ruling out a double dissolution election if that is the basis of what we have been trying to do in the last couple of days. I think the Senate would appreciate an answer from the minister.I now refer to the issue of sea rights, which in a way, through the decision of the Federal Court yesterday, have really put back on the agenda this whole debate about the right to negotiate. Again, this is a question for the minister, and he may wish to comment on it. Is it not true that under section 212 of the present Native Title Act there is an ability for both the Commonwealth and the states and territories to confirm existing rights in relationship to natural resources and water and to confirm public access to public waterways, beaches et cetera? I refer the minister to point 8 of the 10-point plan, which states:The ability of governments to regulate and manage surface and sub-surface water, offshore resources and air space and the rights of those with interests under any such regulatory or management regime would be put beyond doubt.Given the Croker Island decision handed down by the Federal Court yesterday that native title can and does exist in and around bodies of waters, is it not true that future acts could now validly occur without reference to native title holders other than entitling them to compensation? This is the whole issue about the right to negotiate. There is in fact no right to negotiate currently available to those native title holders.I was grateful for a memorandum of advice provided by Senator Harradine's legal advisers, Mr McCarthy and Mr Kildea. The advice of these two legal advisers stipulates that the problem with the bill is that it extends the definition of `sea' into areas which are clearly in the inter-tidal zone. It is simply not good enough to now say that the non-extinguishment principle applies and they are simply entitled to compensation. The final statement in the memorandum from Mr McCarthy and Mr Kildea reads:Neither the Government nor the Opposition has been able to come up with a satisfactory legislative regime to deal with procedural rights for offshore places. It seems that there are theoretical legal difficulties which up till now have been too difficult to resolve. However, it is no longer a theoretical issue; it is now a matter that will need to be addressed by the Government. But it is doubtful whether that can or ought to be done quickly. If there are complex legal issues to be resolved then it would be better to do it in a proper and considered manner.That is useful advice, and it leaves me with a couple of options. One is that, if we took that advice, we should stop debating this issue and take it off to get further legal advice. That is what they seem to be saying. Or, if we are to proceed, we ought to accept the Democrats-Greens (WA) amendments, which at least stop us using a definition to limit that right to negotiate in that intertidal zone. At least that would be some recognition of what happened yesterday.That is why I am asking the minister, Senator Harradine and others to reconsider the Democrats-Greens (WA) amendments to allow and to extend the right to negotiate to waters. Are native title holders not entitled to the protection of their native title, particularly when that has been established by the Federal Court? I ask the minister if he could give a reason why sea rights should not attract the same right to negotiate as land rights. I think that is an important question. If in fact what the Federal Court established yesterday was simply a right to compensation, I guess the minister is just saying, `We will write a blank cheque.' Surely it would be better to have a right to negotiate, which could establish a much better process than simply affirming that there are rights established by the Federal Court and they will come down to compensation, rather than having a right to negotiate which would allow a much better outcome.If the Senate discriminates against sea rights by refusing to attach a right to negotiate which may be recognised by the courts in the future, the effect is like writing a blank cheque for compensation. Otherwise, how will native title claimants of sea rights have their rights respected? Will they have to go to the courts again and again to have their rights recognised? I call on the government, therefore, to restore the credibility of their own bill, at least in this particular instance, and the credibility of the Senate by amending the Wik legislation to take yesterday's Croker Island decision into account. Otherwise, how can the legislation have credibility? You cannot just talk down a Federal Court decision by saying, `We will deal with it later.' I think the advice of McCarthy and Kildea ought to be taken account of and, if they are saying it needs further careful legal consideration, what do we do about that? Do we say, `Let's not deal with the right to negotiate and go and get that,' or do we make this one admission that with the Democrats-Greens (WA) amendments we at least preserve some right to negotiate?There are a lot of other issues I would like to deal with, and perhaps I will get time during this debate to do so. But let me just address the issue of handing back to the states the power to establish a right to negotiate. The Democrats believe that this is an almost insurmountable problem which will lead to all sorts of issues that really go to the heart of who we are as a nation and what we deliberately did in 1967. We want to point out that, contrary to the minister's assertion, there is no imperative on the states to enact state based right to negotiate regimes. We would call upon the states not to let the federal government shift the buck and shaft indigenous people in this way. I have written to the Queensland Premier, the Queensland Minister for Aboriginal and Islander Policy and the Independent with the balance of power in Queensland, Mr Peter Wellington, to that effect. We hope the states do not cooperate with the Howard-Harradine pact and themselves wipe out a right to negotiate, but instead leave the federal system intact.We do believe that, in this particular instance, the people of Australia have spoken quite clearly. Who can forget the fact that the race power was inserted into the first constitu tion of Australia so that the Queensland government could radically discriminate against imported South Sea Islander labourers, the Kanakas? That is why it was put there. I have advice along those lines. We all know that indigenous people were not even mentioned in the race power at that time. It was not until the 1967 referendum that the race power was widened so that the Commonwealth could make laws for Aboriginal and Islander people. The Democrats believe that the referendum intended laws to be made for the benefit of indigenous people and as far as we are concerned that issue is still open to question. So if the Queensland government enacts a native title regime that knocks out the right to negotiate it will not only be racist history repeating but it will be a betrayal of the intention of the 1967 referendum. We call on Peter Beattie, Bob Carr, Richard Court and other state and territory leaders not to play into the government's hands by unfairly reducing the right to negotiate through state regimes.Let me pick up a point made by Senator Bob Brown, and that is the whole joke about mining warden's courts. Not only are native title holders disadvantaged in mining warden's courts but also farmers themselves. If I have time later in this debate I will give you some examples. In Queensland at this very moment there is a tremendous debate going on between farmers and miners over the inability of farmers to get any justice through the mining warden's court. It is not just native title holders but farmers themselves. In Queensland this has been a bone of contention and has required very complicated and longwinded negotiations between the Queensland Farmers Federation, the Queensland Graingrowers Association and the Mining Council in Queensland. There has been great debate simply because the mining warden's court is unable to deal with a dispute between particular land uses and has been quite ineffective in that whole regard.My time is almost exhausted so I will leave it at that point. As the debate proceeds I may want to make other points about this issue of the right to negotiate.18:11:005147Cooney, Sen BarneySenator COONEYSF4VICALP00—Following on from what Senator Woodley has said, I have a question for the minister. You said, correctly, that Mabo and Wik did not involve any right to negotiate and that what we are arguing about here is a statutory right to negotiate, which is apart from common law. Isn't it a fact that a right to negotiate—not this particular right to negotiate—is a common law right? Wouldn't about 95 per cent of disputes be settled through negotiation? When we talk about a right to negotiate we should not be talking about it as though, in a sense, it is somehow favouring one group, that somehow this is an indulgence or a privilege or a concession given to indigenous people. Isn't the fact that there is a statutory basis given to the right to negotiate simply giving a statutory structure to what is a common law right? When we are talking about the right to negotiate, we are not talking about a concept that is new to the law, and made new by the act which was passed in 1993, but simply giving a statutory formulation to a process that is as old as the common law itself.If you sued me for libel—I would never sue you—could I not get on the phone and negotiate? If there were a dispute about a debt I might owe, could I not settle that? If there were a dispute about the boundaries of my land, could I not settle that? What we are talking about here is something that is not an unusual concept at all. We are trying to give a statutory basis to it not so much to help the Aboriginal people but to help all the people who may otherwise have to go to litigation to get their matter resolved. Apart from this act, if there were common law proceedings taken outside the Native Title Act, would those proceedings not be capable of being settled by a right to negotiate?I am putting this to you: wouldn't it be better to look at this issue not so much in the way that we are doing at the moment, that is, by saying that this is a privilege that we are giving to a particular group, this is a concession we are making, but by saying that we are trying to give order and expedition and reasonable cost parameters to a process of negotiation. If that approach is taken, don't we come to the amendments in a way perhaps different from the way we presently do?18:15:005148Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—Senator Cooney's question reminded me that there seems to be a lot of confusion in this debate about a right to negotiate, rtn, and the right to negotiate, RTN. The RTN is a particular process devised from nothing and put in place in the Native Title Act. It is probably the most complex, legalistic and difficult process to navigate ever devised in this country. It is deliberately set out as a set of procedural rights and is seen as superior to the rights that attach to freehold in this country, our highest estate in fee simple.That has been a problem for us, I must say. When we say, `The right to negotiate should not apply here,' there is a suggestion that there are no procedural rights whatsoever. The virtue of section 43A makes it clear that there are very substantial procedural rights being put in place instead of the particular process devised by the Keating government in respect of mining and compulsory acquisitions.One of the other problems is, I would have to say—and many Aboriginal leaders have accepted this—that the expectations of native title per se were raised way beyond what could ever be delivered. The Mabo and Wik decisions make it quite clear that we are talking about a fairly fragile property right. It is not an estate in land. It is part of our common law. It is our common law recognising it as a matter of legal definition and it is made clear in Mabo and Wik. Common law rights are always subject to statutory rights granted by parliaments, so it is a very fragile right. It is communal. It is inalienable. You lose it if you lose your connection or if you are not in accordance with traditional practice, so it is an extremely fragile right. As a matter of common law, it can be completely removed arbitrarily by an act of government.The Native Title Act removes that general defeasibility of native title at common law and says that it can only be extinguished in future by a compulsory acquisition or by agreement and not simply by an arbitrary act of government, which is the case at common law. You can only affect native title if you follow all the procedures of the act, so the Native Title Act sets in place much greater protections of native title than was ever the case at common law. So there are no automatic procedural rights as such at common law.Obviously, in the absence of any procedures of this kind, if the native title holder wished to take legal action in respect of an activity proposed, then the recourse would be to the courts for injunctions. That is the threat that is often made: `If we don't have all these procedures, we'll have injunctions.' We have accepted that you should have procedures of this kind and you should grant to native title holders the procedural rights that attach generally to equivalent statutory property rights as the appropriate basis for proceeding.I think it is very instructive for people to read Justice O'Loughlin's comments about injunctions. He goes to great lengths to play down the prospect of successfully getting injunctions to stop economic activity where a native title claim is in place. I think there is a lot of overstatement of the threat that injunctions may pose in any event. It is much better from a native title point of view to have this statutory framework in place.Contrary to what Senator Brown was saying, the right to negotiate is actually retained for mining and compulsory acquisitions for third parties not involved in infrastructure on vacant crown land throughout Australia. The right to negotiate is maintained, just as it was designed to be by the Native Title Act under the former government. There is a veto on half of the Northern Territory, so there are significant procedural rights around Australia.The point that needs to be made—and the point that some, including Senator Brown, have not really understood—is what common law native title really is about. It is a very fragile right under our legal system and that is one of the reasons the Keating government set up the indigenous land fund—to enable Aboriginal people to buy ordinary title to land so that they could have land with much greater security than was ever going to be delivered by common law. We do not normally have common law property in this country, as senators would know, because it is such a fragile estate.By 2004, there will be this $1.3 billion fund enabling $45 million worth of property to be bought every year forever. That is part of the national compact in respect of this issue. There is the recognition that native title is a fragile right. Because of that and because of the High Court's decision and description of who may get determinations of native title, this fund was set in place. We are putting $120 million a year every year into that fund to build it up to the $1.3 billion, and that is on top of the 15 per cent of Australia that is already owned by Aboriginal people.In respect of Senator Brown's repeated and elaborate references to the Sultan of Brunei and Kerry Packer, I really do think he did a great disservice to the farming families of Australia and he completely distorted the facts. The overwhelming majority of pastoral properties are owned by families. Less than 10 per cent are in corporate hands and even they would be small holdings. There are 3,762 farms which are family owned and only 259 are corporate owned. Overwhelmingly, it is Australian families who own these farms that are under pastoral leases. The level of foreign ownership is very low, and in fact I am advised that Aboriginal groups own an enormous number of these leases. Indeed, 20.4 million hectares of pastoral lease is actually held by Aboriginal groups. I do not think it helps the debate to introduce the emotionalism of rich foreigners.Senator Woodley asked the question—and I am not sure why—about double dissolution elections. As he said, at the moment there are three bills which satisfy the conditions of section 57 of the constitution—this legislation, the unfair dismissal legislation and the Public Service legislation. If this bill passes the Senate tonight, then it will no longer satisfy the conditions of section 57 but the other two still will.The Prime Minister has never said one way or the other whether there would be a double dissolution either on this bill or on the other two pieces of legislation which satisfy the terms of section 57. The removal of this bill from that list still leaves two other bills, so the situation has not changed in that sense. Under our system, the Prime Minister has always had the prerogative to determine when a double dissolution trigger has been created whether to seek to have both houses dissolved or not. That remains the case. Nothing has changed in that sense.In terms of sea rights, another matter which Senator Woodley referred to, I simply remind him that, back in 1993, his party voted for the current Native Title Act's provisions which provide that, with respect to offshore activity, the procedural rights attaching to native title would be any corresponding rights and interests to the offshore place that are not native title rights and interests. That is what his party voted for back in 1993. This matter was thoroughly canvassed then. It was deemed then by this parliament—to which his party was a party—that, in respect of offshore, the right to negotiate would not apply and the procedural rights that attach to whatever native title may be found to exist offshore would be the corresponding rights and interests.From the Croker Island decision yesterday, we have seen the nature of what we would expect native title to be offshore. It is a right that is not exclusive. It has been made quite clear that it is not exclusive. It relates to fishing, hunting and access for traditional purposes. That is what the right amounts to.I can only presume that the parliament back then, and the Keating government back then, fully anticipated that, to the extent native title was found to exist offshore, it would never amount to exclusive possession and, therefore, the right to negotiate would not be appropriate. The right to negotiate was devised on the premise that native title on land would be found to exist on only vacant crown land where it could amount to exclusive possession and, therefore, an appropriate level of procedural rights should be devised with respect to just these two activities—mining and compulsory acquisition.Given that native title offshore could never amount to the same equivalent body of rights, it was not appropriate to have such an elaborate set of procedural rights exceeding, generally speaking, the rights available to freehold ers in Australia. That is the reason why the previous parliament in the 1993 act did not provide for a right to negotiate but provided procedural rights that would be `corresponding rights', essentially the scheme that we are maintaining. We think that it is confirmed to be appropriate, given the nature of the native title rights which Justice Olney has found to exist.18:26:005150Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I agree with Senator Minchin's comment that irrelevant contributions to this debate are unhelpful. Particularly, contributions which lack essential knowledge of what the Native Title Act is all about and what the native title amendment bill is all about are equally unhelpful.Senator Minchin was referring to the contributions of Senator Brown, and I feel that it is important to place certain things on record. Senator Brown suggests that the lawyers of the mining companies were responsible for the development of proposed section 43A. That is absolutely laughable. I would suggest that Senator Brown consult with the mining companies and see what they might say about that. I want to come to that question that was raised by Senator Woodley and responded to by the minister later.The right to negotiate in the 1993 act, as the minister said, does not cover that situation, but I have something to say about that at the end. Proposed section 43A does not repeal the right to negotiate provisions in the 1993 act. It does not repeal them at all. It cuts in only where there is a state based system which will provide adequate procedural rights to ensure the native title rights and interests are properly catered for. Those must be in accordance with stringent provisions in the new Native Title Act, which include notification, consultation with the view to minimising any effect on native title rights and interests and mediation. If there is no agreement, it includes arbitration.It does include an override, but so do the right to negotiate provisions in the 1993 act. But in this case the override by the responsible minister must be only after consultation and taking into account the submissions by the Minister for Aboriginal and Torres Strait Islander Affairs. All of that is judiciable. Do you follow? Finally, that scheme must be given the tick by the federal minister for Aboriginal affairs, not the people that Senator Brown was talking about. That has to be by a legislative instrument. When the legislative instrument comes back, we have to approve it.Sitting suspended from 6.30 p.m. to 7.30 p.m.19:30:005150Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I think we were discussing water before the suspension of the sitting and, if I can just add to the discussion, it is quite apparent to the opposition that, even before this legislation passes this parliament, even before this package is endorsed by this parliament, it has been found to be inadequate. It is inadequate in that, although in the interests of the government the legislation may be seen to deny native title claimants a capacity to access their rights under the act, that is what it does do. It does not provide justice and it does not provide certainty because of those provisions.We had the opportunity in December and in April to ensure there was some process, there was some protection and there was some consequent inducement for native title claimants to access this legislation. The government's sneaky manoeuvre, whereby the intertidal zone is taken from the ambit of the right to negotiate, may give them short-term joy but will give industry and stakeholders medium- to long-term problems until it is resolved in this place. The lack of process for other waters is also a major deficiency. But the government do not care. They are passing the buck; they are passing the bill to the taxpayer. Richard Court will not care, because he will pass the bill back to the general Australian taxpayer. But we are only really doing half a job here—even if we are doing that—and by taking away indigenous people's rights we are not doing much of a job at all. I just do not think that Senator Minchin gets it. After listening to him before the dinner suspension, I was torn between arguing that he does not get it or arguing that, having spent time during the longest debate in the history of this parliament with him in this chamber, I suspect he probably does get it but does not want to acknowledge that there are problems in this legislation.We are not implementing this legislation for the sole benefit of indigenous Australians. Native title does not derive from this legislation. It does not derive from High Court decisions. Native title is recognised by High Court decisions as pre-existing. To the extent that we do not accommodate native title through processes settled by this parliament, then we are not doing our job.As I say, even before this package gets through this place, it has been found to have major inadequacies by the ruling with respect to water. But those inadequacies do not just stop there. This is a package that was promoted using those buzz words `fair', `just' and `certain'. It is not fair. No-one in their right mind would claim that it is fair. It is not just. Even the process was not just. But certain? Certainty has been thrown out the window by the Croker Island decision. Certainty is certainly not embodied in proposed section 43A, the provision that is now before us.Let us look at proposed section 43A. We had major concerns with it in April; we have more concerns with it now. It is now deemed to cover not only pastoral leases but also historical and current freehold and leasehold. So the ghost leases are now covered. It covers reserves, including national parks and Aboriginal reserves. It also covers proclamations, dedications, land used for any purpose, and areas within a town or city. How can one justify the application of this provision to proposed section 43A and the consequent exclusion of the right to negotiate from those areas?It basically means that, if all the state governments establish the section 43A regime, the right to negotiate will apply only to a minuscule part of Australia in respect of a minuscule range of rights. The government's rhetoric has given us absolutely no basis for extending the application of this scheme to historical leasehold, freehold and reserves. But that is what has been done here, without any explanation to the public or to indigenous interests. The application of proposed section 43A to historical interests means that the right to negotiate will not apply to vacant crown land, existing Aboriginal reserves and Aboriginal owned pastoral leases. At the very least, the government should have made an exemption for these categories of land and permitted the right to negotiate to continue to apply. That is a fundamental concern.If you want certainty, you do not come up with this option. This option is riddled with uncertainty. Subsection (3) deals with notification of the scheme to Aboriginal and Torres Strait Islander bodies about aspects of the scheme. They are notified and they are invited to put forward submissions. But there are no time frames specified.In fact, there are no time frames embodied in this legislation at all. So you will have the uncertainty of different states perhaps coming up with different time frames. You will have the uncertainty of maybe having no time frames at all in some states. You will not have the benefit of the right to negotiate provisions where there are definite national time frames which are conducive to achieving outcomes. There are no time frames specified for the lodgment of an objection in response to a notification or to prepare, lodge and secure registration of a native title application. This leaves the process open to abuse from hostile state and territory governments.Haven't we already had three or four years of abuse by those state governments? To say, as Senator Minchin said before the suspension of the sitting, that Aboriginal Australians had expectations but they were not realised and to say that so glibly without recognising that conservative state after conservative state went out of their way to frustrate the processes here is being misleading.Required under existing provisions for the right to negotiate is, amongst other things, negotiation in good faith. This provision junks that requirement. In respect of the creation of a right to mine, the proponent—that is, the miner—has a duty to consult with registered native title claimants. In the instance under proposed section 43A, that consultation is limited to `minimising the act's impact, access and the way anything authorised by the act may be done'. It goes back to the point I made earlier on about a capacity for indigenous Australians to basically get on their own feet through access to native title.In the case of compulsory acquisitions of native title for a grant to non-government parties, the grantee party has absolutely no duty to consult with native title holders, be they registered or otherwise. With no duty to consult, you strip away immediately any legal requirement that would lead to commercial negotiations over the land. Consultation is limited to minimising the act's impact.It is worth noting the registration processes here because it will not be all that long before this particular aspect is brought back to this parliament. Unlike the right to negotiate, the process in 43A does not provide a process for native title holders to become registered. Senator Harradine, you may not have thought of it, but there are a lot of things in this package that you never thought of.6H4HARRADINESenator Harradine—I thought of it all right. You don't understand.XE4Bolkus, Sen NickSenator BOLKUS—So what happens in those circumstances? We have legislative encouragement here for the blanket lodgment of native title claims. What does that lead to? Confrontation, cost and lengthy processes. Apart from the government's acquisition for its own purposes, the scope of negotiation is limited in comparison to the current right to negotiate. I would like to know, for instance, what criteria will be taken into account in any determination under this alternative clause. In respect of the right to negotiate, we have the criteria in section 39. Do they still apply here? That is a question that the minister may choose to answer. That is a question that Senator Harradine may also choose to answer. He may not, of course.There are other problems with the right of objection. Only registered bodies and native title claimants have the right to object to the doing of any act in so far as it affects their native title. An independent person or body, which includes a mining warden, hearing an objection can make a determination upholding the objection or impose conditions to the doing of the act, provided that the conditions relate to the registered native title rights and interests. Unlike section 39 of the current Native Title Act, as I said, there are no specified criteria. In addition, the state or territory need not comply with the determination if it is deemed to be in the interest of the state or territory not to do so.In relation to judicial review, the paragraph basically restates the current position of all persons at law, that they may seek a judicial review of the decision to do the act. The paragraph does not apply to the decision of the independent person or body, only to the decision of the granting body or the minister. Then you have ministerial override available to a state or territory, to a minister in a state or territory who may deem that it is not in the interests of the state or territory or in fact not in the interests of a relevant regional locality not to do so. Native title—a national issue—may not be in the interests of a relevant local regional locality and, as a consequence, there is a ministerial override.We find the provisions with respect to compensation and heritage protection quite fuzzy. But the thing about the proposed section 43A provision we find quite incredible is that it really does not provide certainty in any sense at all. I go back to that initial point: there is no certainty as to time lines, no certainty as to what criteria are relevant.We also find problems with the alternative section 26A. It is too broad in its application as far as we are concerned. The Senate took a position earlier on in this debate to ensure that acts that could qualify for section 26A endorsement had to be acts which had an insignificant impact on native title. That has been changed now to basically provide for acts that have only a minimal effect on native title. Exploration activity likely to be covered by the section, on our advice, will include mining and retention licences, bulk sampling—in some states up to something like 20,000 tonnes—and extensive drilling. You extend the capacity of activity that flows straight through under section 26A; you offer a more limited right to be consulted; you do not provide a process for native title holders who have not had their title determined to become registered claimants; and you do not have a right to have an objection arbitrated by an independent body, as was passed by the Senate last time. Then you have the granting body, usually a state or territory minister of mines, having an absolute discretion to ignore the concerns of native title holders.There is no justice and, because there is no justice, there will not be any certainty. And that catch-cry with which this package was promoted last week is not going to be realisable. I do not have to tell the public that in the eyes of the public this package promoted last week was seen as a desperate measure to save the leadership of the Prime Minister (Mr Howard). It was seen to be a last-ditch attempt; it was too late. I think the public appreciation of this issue is such now that they do not believe the Prime Minister when he says, `Oh, well, I've fixed up the problem, I'm giving you certainty,' because they know that he has never been up to this task. He has never been able to show the national leadership to handle it.Senator Harradine, you may have tried to help, you may have shored up his leadership for some time, but although you might have done that you will never be able to make a real Prime Minister out of him. You will never be able to make a Prime Minister out of John Howard, about whom the Australian public will say, `We're proud of him.' You will not be able to do that because he has shown in this debate that he is not up to the task. You have presented to stakeholders an uncertain model and, as I say, this is not the last time we will be in this place discussing it.19:44:005153Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—Before the break, I asked the minister, Senator Minchin, a question. He gave me a very frank answer, for which I thank him. I think that often his answers are frank, even when I do not agree with them. That is very useful. He was puzzled by the question because it was about the double dissolution. I thought perhaps I should put on the record why I asked that question. I remind you of a statement by Senator Harradine on 1 July, where he said:This outcome avoids a race based double dissolution election which I believe would have posed a serious threat to the fabric of Australian society. The minister's answer was frank. He said, quite clearly, that there are triggers which are available, and it is up to the Prime Minister (Mr Howard), as it always has been, whether or not we have a double dissolution election. The one fact, however, which is not in question is that we will have a race based election. I have already debated this on a number of occasions, but let me put it on the record again. It seems that this is the only basis on which we have been here for the last two days debating this issue. There will be a race based election.The One Nation Party is a misnomer. They are not one party; they are a collection of motley individuals and groups ruled by a company with just three people. They are certainly not one nation, because they guarantee that they will divide the nation. As I said, we cannot avoid a race based election. I did feel that perhaps we would be avoiding a double dissolution election, but the minister's answer—and again it was very frank—was that that is not ruled out at all. So, Senator Harradine, you may need to reconsider whether or not we should think again, even at this late stage, on this critical issue of the right to negotiate.The one thing that I cannot seem to get any recognition of from some people in this chamber is that the Mabo High Court decision is a fact. There is no way that we can reverse the decision that the legal fiction of terra nullius is no longer available, as it was available for over 200 years, as a basis on which the dispossession of Aboriginal people proceeded. We can go right back to the judgment of Justice Blackburn when the people from Yirrkala first raised their objection to mining at Gove. They appealed to the courts, and at that time Justice Blackburn pointed out that they had no legal rights because of the doctrine of terra nullius. It was not until that was overturned by the High Court that we finally admitted that the whole basis on which the dispossession of the whole of this nation took place over 200 years ago was never a basis for dispossession at all.We cannot proceed on any assumption that, somehow or other, what we must do is give to Aboriginal people some rights or other. The fiction on which we dispossessed Aboriginal people has been ruled out. What the abolition of terra nullius did was recognise that Aboriginal rights and Aboriginal ownership of this nation predates European occupation by thousands of years.Recently, a very wise man in the Northern Territory, Djiniyini Gondara, who is a minister in the Uniting Church and who has a PhD—so much for the myth of ignorant Aboriginal people; he has a PhD and he deserves it—in an address to the Council for Aboriginal Reconciliation pointed out that Aboriginal people recognise that their rights exist within their law. The ancient laws of their people establish their rights and their ownership, and nothing we can do can alter that.We cannot alter that fact, and we do great damage to reconciliation and the spirit of this nation if we say to Aboriginal people, `Oh, but we know better. You don't understand. You have to conform.' Aboriginal people have never accepted that argument. They do not agree. It is an insult to say to them or to infer that, somehow or other, we know better than their experience.That is underlined by the very people who give this whole debate a name—the Wik people. On a number of occasions I have put their history on the record in this place. These people have fought for generations just to exist on their own land, and they still await a determination by the court of their claim over a couple of properties, which was their own land. They have never surrendered their rights, and our refusal to recognise their rights leaves a great gulf between us and them. What we must do is to never infer that somehow or other we are going to give them rights. All we can do in this place and in our courts is to recognise rights which already exist and which they have never surrendered.I really do believe that this issue of the right to negotiate is fundamental for us. It is fundamental because it is an opportunity for this parliament to recognise that, at least on that basis, we can go and negotiate with people who already have their rights and who already recognise their ownership of this country. If we could only do that, then per haps we could recover something of the process of reconciliation, and we could do something about the gulf that exists between us and the spirit of this nation which can never be healed unless we recognise those rights—the rights of an ancient people who have always had possession of this country and who want to share with us the great wisdom, the great gifts that they have, if only, in this country, we could recognise the contribution that they want to make.19:52:005154Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I may have misheard Senator Bolkus. Was he alleging that registration of native title claimants would not trigger 43A? Was he suggesting that?19:53:005154Bolkus, Sen NickSenator BOLKUSXE4SAALP00—What I was suggesting is that the process that you have agreed upon does not provide for a process for native title holders to become registered.6H4HARRADINESenator Harradine—That is not the scheme of the 1993 act. What are you talking about?XE4Bolkus, Sen NickSenator BOLKUS—I am talking about a gap in the provisions that have been agreed upon in respect of the deal that was presented to this parliament. You do not have any process for native title holders to become registered, and my advice is that this will lead to blanket lodgment of native title claims. Of course there are resource implications involved with that, but the advice from my lawyers is that there is no such process. As a consequence, there may be all sorts of overlaid problems.19:54:005154Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I think the opposition may want to revisit that. The agreement between Senator Harradine and the government and the amendments that have been brought forward do not change the registration process in any way. If claimants wish to be registered, they register under the processes set out in the bill. Once registered, it is a question of what procedural rights will attach to the registered claim. The only difference between the scheme announced in June last year and what is now before the Senate is that, if a state scheme has been put in place on a pastoral lease, registered claimants will have the specific procedural rights set out in 43A. It does not affect in any way the registration process that has been there for some time. It was in the bill back in June, and this scheme was there in June last year. All we did, in agreement with Senator Harradine, was to spell out the procedural rights that will attach to registered claimants where the claim is over a pastoral lease and the activity that is proposed is mining or a compulsory acquisition.19:55:005155Cooney, Sen BarneySenator COONEYSF4VICALP00—If you look at section 43A, it may be—6H4HARRADINESenator Harradine—Senator Bolkus is wrong.SF4Cooney, Sen BarneySenator COONEY—It is in substitution of subdivision P, the provision in the original bill which talks about the right to negotiate. You have in (1)(a) a concept that certain acts are in issue. If you look at (4)(e) and (f), you will see there are two bodies which can look at those acts. I take it that is the act that gives rise to the claim to negotiate. In (4)(e), it says that if any person objects as mentioned in paragraph (b) then the scheme has to provide for the objection to be heard by an independent person or body. So it is one person or body who will look at the acts which are the subject of dispute.In (4)(f), it says that you also have to provide for a judicial review of the decision to do the act. So there is a body that looks at the objection and a body that looks at the decision. If you go down to (6), it says: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.It seems that one of the problems with 43A is that there are at least three bodies that should be devoted to the same process, that is, finding out facts about the act that gives rise to the claim to negotiate.The other problem is where we talk about determination. In proposed section 43A(1) the use of the word `determination' is different from the use of the word in (4). If we could clear up what all those bodies are meant to do, perhaps what the scheme is would become clearer. We should be clear about what is meant by `determination' in (1), (11) and (4)(g).19:59:005155Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I would have thought that was self-explanatory, certainly to a lawyer of the eminence of Senator Cooney. We are talking in 43A about the capacity of the Commonwealth minister to determine, in writing, that an alternative scheme shall have effect in place of the right to negotiate provisions if that alternative scheme meets all the requirements that have to be satisfied under 43A(4). It is a Commonwealth ministerial determination, and that is also what is referred to in (11).As Senator Harradine has pointed out, ever since June last year when we first announced this mechanism, that is obviously a disallowable instrument. If any senator wishes to move a disallowance, it can be done. Subsection (4) sets out what the alternative scheme has to contain or provide for for the Commonwealth minister to be able to determine that it is an approved scheme. It requires the sorts of things that are commonplace in relation to procedural rights that attach to title holders under state law.Part of the problem is that this Commonwealth parliament basically has no experience in, expertise in or familiarity with the property law of this country because it does not deal with it. That is the sovereign right of state parliaments. By virtue of the races power and native title decisions, all of a sudden we have quite massive intervention in property law by the Commonwealth parliament, and there is not that much familiarity with it. The fact is that these are the sorts of procedures laid down, and they have probably been there for 100 years at state level.Typically, and as we provide in this, for a state scheme to be approved, a title holder who has an objection to the doing of the act that is proposed by the state government has a right to have their objections heard by an independent person or body. That will typically be a structure that has already been estab lished and has decades and decades of experience, because this goes on every day for thousands of activities under state law. We are incorporating the procedures into state law.Whoever ultimately makes the decision that the act can be done—in this case, whoever decides that a mining lease can be issued—shall be subject to judicial review of that decision. In other words, the state scheme that is proposed to the Commonwealth minister does have provision for judicial review of the decision made by whoever makes the decision at state level. I would have thought that was eminently clear. As the example says, `The judicial review could be by the Supreme Court of the State or Territory.' And in most cases it presumably would be.20:02:005156Cooney, Sen BarneySenator COONEYSF4VICALP00—You have judicial review of the decision, but then you also have an independent body listening to an objection which is set out in (4)(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 . . . Is the structure set out in subparagraph (e) and the structure set out in subparagraph (f) alternatives? Then if you go to subsection (6) you have another structure: an independent body that looks at compensation. There seems to me to be a need to clarify what these various bodies have to do. You are going to have a court, I take it—it suggests here a mining warden. Perhaps something stronger than that is needed to hear the objection. Do (e) and (f) provide alternatives? Can you have a judicial review of the decision if you want to or can you take an objection to the act before some sort of body?20:04:005156Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—Again, (4)(b) requires that, before the Commonwealth minister can approve the scheme, the scheme must clearly ensure that any claimant does have, as a matter of law, a right to object to the doing of the act. The scheme must also in (4)(a) ensure that those objections can be heard by an independent person or body. So they are not alternatives; they complement each other. Additionally, not only do we have all those requirements but also they must provide for compensation, and any dispute about compensation shall be determined by an independent person or body. That need not be the same person or body. We are not stipulating that. That is a matter for the state scheme. The Commonwealth minister simply has to be satisfied that there is a right to be compensated and a right to have any dispute about it determined by an independent body.20:05:005156Cooney, Sen BarneySenator COONEYSF4VICALP00—I agreed with you that the rights we are talking about when you look at them in the history of common law are what you would call fragile rights—rights to hunt or to carry out ceremonies or what have you.6H4HARRADINESenator Harradine—We are talking about native title.SF4Cooney, Sen BarneySenator COONEY—Yes. Subparagraph 43A(4)(e) talks about the body hearing the objection. Is the government concerned that, if you had somebody like a mining warden hearing a case, he would not have sufficient knowledge or background to be able to deal with the matter? You suggest in (f) that the review could be by a Supreme Court of a state or territory. Should you not have a similar sort of body hearing the objection that somebody might make? In other words, I am suggesting that you really do need a court to deal with an objection that a person might make, otherwise you may not get a proper consideration of the issues involved.20:07:005156Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I am not sure whether Senator Cooney is necessarily saying that an expert body needs to be established. We have the Federal Court dealing with native title matters per se—and, of course, there is no specialist native title body dealing with that, and no-one is suggesting that. It is the Federal Court and whichever judge of the Federal Court may have the case, and they hear cases across a whole range of areas.The objections are in relation to the doing of the act in so far as it affects their registered native title rights and interests. But, as with general law, they have to be able to make their objections known in the context of (b): they have to object on the basis of the effect of the act on their native title rights and interests and, as I have said, that the independent body is able to hear those objections and that there is a judicial review ultimately about the decision, if it is made, to do the act.The subject of a specialist tribunal is a much wider debate, but I think expertise will develop in this. The independent body will be dealing with a mining application, for example, on a pastoral lease. Perhaps before that body will be an objection from a pastoralist who will say, `I object to this mining lease because it affects the best paddock I have on the place.' Then there may be native title holders who, under (4)(b), will object because they believe and maintain that the mining lease affects their particular native title rights and interests in a particular way. Based on the various objections that have been placed before them, that independent person or body will have to make decisions or recommendations, whatever the case may be, as to whether they think the act should proceed.20:09:005157Bolkus, Sen NickSenator BOLKUSXE4SAALP00—May I ask the minister: what provision is there in the legislation for registration for native title holders in respect of the proposed section 43A state based regime? For instance, you will be having state based regimes, and they have not been identified as yet, but where will a native title holder be able to become registered for the purposes of those regimes?20:09:005157Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—Before the Commonwealth minister can approve the scheme, there are appropriate procedures for notifying any registered native title claimant, any registered native title body corporate and any representative Aboriginal and Torres Strait Islander body in the area about the acts that are proposed to be done. So it simply replicates the right to negotiate procedure.There is a federal registration system; a federal tribunal remains in place. This is about the procedural rights that attach to the native title holders if an act is proposed to be done. But they remain registered under the normal federal registration system. They are registered native title claimants. And then, if they are registered, they get these rights.XE4BOLKUSSenator Bolkus—Are you basically saying that the 207B regime will apply in respect of registration of native title holders or is it more than that?JX4Minchin, Sen NickSenator MINCHIN—The current Native Title Act—and this continues it—does provide for mechanisms whereby states can, with the approval of the Commonwealth, set up mechanisms in effect for the state bodies to operate in the place of the National Native Title Tribunal and, in so doing, comply with all the requirements of the Native Title Act. That is part of the Native Title Act scheme. The states simply have not chosen to do that. Why would they when the Commonwealth pays the $20 million a year to run the National Native Title Tribunal? Whether the states set up complementary state schemes for the registration process, for the mediation process, is a matter for them.We are talking here about the question of the procedural rights that shall attach and how they will be dealt with in connection with registered native title claimants. Prima facie, it would be through the Native Title Tribunal, but it could be through an approved state body that has the functions of the National Native Title Tribunal and operates according to the rules laid down in the Native Title Act for the operation of such bodies. But registered native title claimants would remain as such either way. Having been registered one way or the other, they could then, if a state scheme of this kind had been approved, access these particular procedural rights. I cannot see the problem.20:13:005157Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I still need some clarification here, Senator Minchin. Are you saying that holders become registered under a federal regime or do they have to register under a state regime or do they have to register under both?6H4HARRADINESenator Harradine—Not holders; claimants.XE4Bolkus, Sen NickSenator BOLKUS—Claimants.20:14:005158Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—This was one of the arguments we had before. Under our scheme, claimants can always register with the federal body, if they so choose, but there are equivalent state or territory bodies provided for, as you know, in parts 12A, 207B and onwards. That provides for equivalent bodies—equivalent to the NNTT—which the states can set up. I think I am right in saying that claimants can then choose to register either with the equivalent state body or with the National Native Title Tribunal, which will continue. In either case, they are a registered claimant for the purposes of this alternative scheme.20:15:005158Bolkus, Sen NickSenator BOLKUSXE4SAALP00—What we have now is an impending problem. Until now, as you have quite rightly said, we have had a national based scheme. So claimants can become registered on a national basis under the national scheme. As a consequence, when something happens that may affect their rights, they are notified. But you are about to embark upon a new era. You are about to give states the capacity to have state based regimes. What I would like to know is how you will protect those who, for instance, are registered through the national scheme. I do not see anything in the legislation that provides for a state based registration system. You may be anticipating one, but if you are anticipating one can you tell us whether you are? Can you also tell us whether you have looked at the jurisdictional interrelationship between Commonwealth and state in respect of registration, processing and notification?20:16:005158Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—The 207B scheme has been there for a long time, and I do not think it was controversial. I do not really think it affects this in any way. The states can apply to set up an equivalent body as part of the national approach to the registration of claims and to the performance of the functions of the Native Title Registrar. It is simply saying that those functions can be performed by an approved state body, which is the registration of claims and the mediation of claims prior to their being dealt with, if necessary, by the court. That does not change; it is not affected by this scheme in any way. We are still maintaining a national register of claims.As I say, that was put in there a year ago. I do not recall violent opposition to that. In South Australia, as you know, we already have an approved right to negotiate scheme operating at the state level through state bodies but operating under federal law. That is how this state based equivalent of the Native Title Tribunal operates under a national scheme. Registration takes place. It does not matter for the purposes of section 43A whether the registration took place through the equivalent state body or the national body. They are on the national register of native title claims and, therefore, must be entitled to all the rights set out in 43A.20:17:005158Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I can understand why you may have forgotten one part of the process, Senator Minchin, and that part of the process is how you notify the native title claimants. You may have them registered on a national scheme, but they do have a role to play in the process. If they are registered on the national scheme, what scheme will be anticipated in a system where under 43A much of the decision making processing will be state based? How will you ensure that those who are registered nationally on the national register are notified that their interest might be affected? It is not the decision making that I am concerned about. As I said, we are about to embark upon a disintegrated scheme based in states. If something is to happen to a native title claimant's interest, and that claimant is registered on a national level, how will you ensure that the mining warden in WA, for instance, will notify everybody? Is that warden going to be given the power to override or to instruct the national registrar to send out notification notices or what?20:19:005158Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—We always come back to the point that, once you put rules in place, they have to be complied with or you suffer the penalty. There will be a national register of native title claims. Under 43A the state scheme must have a mechanism by which registered claimants must be notified. Obviously the state government, if it is issuing the notice, as with the section 29 notice now, must issue that notice to everybody who is on that register. If they do not, then they are going to suffer the problem that ultimately—XE4BOLKUSSenator Bolkus—Which register?JX4Minchin, Sen NickSenator MINCHIN—The register of native title claims. Whether it comes onto the register through the equivalent state body or the national body, there is a register of native title claims.XE4BOLKUSSenator Bolkus—So you're saying there's one register?JX4Minchin, Sen NickSenator MINCHIN—Yes. There is one register, but you can get onto that register either through the National Native Title Tribunal or, if there is an equivalent state body and a claim is made through that equivalent body, you get onto the national register through that scheme. The notice must go to everybody relevant on that national register. If you do not comply with all those requirements, you suffer the problem of the potential invalidity of the act done.20:20:005159Bolkus, Sen NickSenator BOLKUSXE4SAALP00—Is there a provision in the empowering section 43A mechanism to ensure that, unless a claimant on the national register is notified, there will be invalidity?20:20:005159Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I think it is obvious on the face of it that the Commonwealth minister can only approve the scheme if it contains appropriate procedures for notifying each of the following that an act to which the provisions apply is to be done—any registered native title claimant, registered native title body corporate or any representative body. In other words, to comply with the scheme those conditions have to be met. The state scheme, in other words, on the face of it, quite clearly has to ensure that each of the following are notified when an act is proposed to be done. If they are not, then by definition the act that is proposed to be done will not comply with the procedures and will not be valid.20:21:005159Bolkus, Sen NickSenator BOLKUSXE4SAALP00—You can anticipate, given the lack of trust in state jurisdictions, that native title claimants will, I suspect, flock to national registration. What capacity is there for a state based decision maker, whether it is a mining warden or whoever, to force notification of a claimant's interests who is registered nationally? Is there going to be a capacity for the mining warden or whoever it might be to demand that the national registrar notify, or is it going to be state based? What are you talking about?20:22:005159Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—Typically, we are talking about a state government issuing a notice that it is proposed that the state government issue the mining lease. Like a section 29 notice, the government issues a notice that it proposes that the following mining lease be issued. We are saying that the state scheme, as in the federal scheme, has to ensure that the state is required to notify each of those people that the act is proposed to be done. That is the precondition of the scheme being approved and the scheme must ensure that is done. If it does not, then it will not comply and the state then runs the risk of the invalidity of the acts it is proposing under Commonwealth law.20:23:005159Bolkus, Sen NickSenator BOLKUSXE4SAALP00—So in those circumstances will the state body have access to the national register?20:23:005159Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—The national register is now a public document. I think it is available in every state where the Native Title Tribunal has offices. It is a public document. That is what the states do now with the issue of section 29 notices. So it will be no different in that sense.20:23:005159Harradine, Sen BrianSenator HARRADINE6H4TASIND00—Proposed paragraph 43A(4)(b) specifies that any claimant or body corporate must be given `the right to object, within a speci fied period'—there is nothing in there that says the actual period—`after the notification, to the doing of the act so far as it affects their registered native title rights and interests'. So that is in there.I am sure Senator Bolkus, like me, will be watching like a hawk what is happening. This alternative scheme in section 43A has to go through a whole lot of barriers. It has to go through the parliaments in the states. You have got a Labor government in Queensland now and you have also got a government in Western Australia where it does not have the majority in the upper house. I suppose all of these matters will be thoroughly discussed at that level. Then it will come to the Commonwealth minister for Aboriginal affairs and that minister is required to consider the matter. If that minister gives the tick to this scheme, then that has to be done by way of legislative instrument, which is disallowable by us here.I would be interested to know, for example, if Mr Beattie in Queensland is happy with the right to negotiate provisions in the 1993 act? I assume he has had time to consider this over the last few years. I was wondering whether you could advise the committee whether he is happy to leave it at the right to negotiate provisions in the 1993 act. The second question I would be interested to hear your response to is: is Mr Beattie intending to repeal section 43A after it goes through the parliament? It would be interesting to know that.20:26:005160Bolkus, Sen NickSenator BOLKUSXE4SAALP00—They are two arguments that, obviously, have been floated in recent days. I think it is worth noting when you discuss Premier Beattie that there are five states in Australia where the government does not have a majority in both houses of parliament. In Mr Beattie's case, he has to rely on an Independent as well and it is the same in New South Wales in terms of the upper house. It is the same also in WA and South Australia, which you mentioned, and Tasmania. The Northern Territory, Victoria and the ACT are the exceptions. So whatever those jurisdictions and their leaders want to do, they will have to work that out in terms of trying to get something through their parliaments.The other concern I have is that, even if something were to come up that you, the Labor Party and other minor parties here thought was objectionable, would we have sufficient numbers together to ensure that that provision was overruled in this chamber or would we need one more? That is before the election. What would it be like afterwards?In respect of Mr Beattie, I am sure he will have to confront the issue of unworkability in a very short period of time. Even before this legislation gets through this place, we have the issue of native title in respect of water which has to be addressed. It is my very clear expectation that the section 43A mechanism as it is developed and presented here has got more uncertainty and unworkability problems than anyone could ever imagine in respect of the right to negotiate. So let us not kid ourselves into thinking that we have got something here that is workable. Let us remember that this Prime Minister hardly gets anything right. Already in the last 24 hours we have discovered that this package does not resolve the issues that we were promised it would last week.20:28:005160Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I will have to study that response in detail. It did not say that the Premier of Queensland will be happy to rely upon the 1993 act. Could I go to the point about the Croker decision. I want to respond to some of the matters that have been raised in respect of that issue. There is a good deal of misunderstanding about the issue. There is absolutely nothing in this bill—or after tonight if the legislation is adopted—which would have any specific effect on the native title rights and interests of successful claimants as found by Olney J in the Federal Court—absolutely nothing. Those who suggest that this bill is going to affect the common law native title rights and interests of those for whom Olney J found are wrong, because nothing in this bill will affect those common law native title rights as determined by the common law.I am a bit peeved by some of the misinformation that is going around the place. It is worrying, because it does not serve the cause of indigenous people well at all to be party to the propagation of false information. Some of the people who are doing this I know are innocent and are being badly advised by their legal representatives.I wish to refer particularly to a statement that apparently was made today by the Northern Land Council, a statement that was issued by the chairman of the Northern Land Council, no doubt on advice the chairman had been given. The Northern Land Council accused me of reneging on an undertaking that I gave that I would uphold the common law native title rights of indigenous people. The fact of the matter is, when you analyse everything that I have done, that I have on all occasions upheld the common law native title rights of indigenous people. I seek leave to incorporate in the Hansard a copy of the Northern Land Council's letter to me of 6 July; a copy of my response to that letter of 7 July 1998; a copy of the Northern Land Council's media release entitled `Harradine promises hurt'—XE4BOLKUSSenator Bolkus—How did you pronounce that—`Harra-dene' or `Harra-dyne'?6H4Harradine, Sen BrianSenator HARRADINE—Interestingly enough, the Aboriginal stream call themselves `Harra-dyne', and so do some of our stream, but I am called `Harra-dene'. I do not know how that all occurred, because my grandfather was called `Diny'. But that is another point. I also seek leave to incorporate my press release in response to the Northern Land Council media release. Again, I defy anybody to say where I have undermined and voted against the common law native title rights of indigenous persons. Nobody can legitimately claim that that has taken place.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Chapman)—Is leave granted for the incorporation?XE4BOLKUSSenator Bolkus—On condition that we also incorporate the media statement from the National Indigenous Working Group of today's date on that particular point, sure.6H4Harradine, Sen BrianSenator HARRADINE—I have not seen the last document, but I will agree that it be incorporated sight unseen.Leave granted.The documents read as follows—Northern Land Council9 Rowling StreetCasuarinaNT 0810Phone: (08) 892051006 July 1998Senator Brian HarradineParliament HouseCANBERRA ACT 2600Facsimile: (02) 6277 3739Dear SenatorNATIVE TITLE AMENDMENT BILL—CROKER DECISION 6 JULY 1998Your agreement wit the Prime Minister regarding amendments to the Native Title Act 1993 must be reconsidered following today's landmark Federal Court decision in which, for the first time in Australia, Justice Olney recognised that native title exists off-shore. The traditional owners of Croker Island have been successful in establishing their native title rights to over 2,000 square kms of sea and sea-bed adjacent to Croker Island in the Northern Territory.The Court described these rights as non-exclusive, and as including a right to fish, hunt, and safeguard spiritual and cultural knowledge. This decision brings Australian law into line with decisions in Canada, the United States, and New Zealand, where non-exclusive native title rights are accorded important protections for Indigenous people regarding proposed developments.For example, in Canada, Indigenous people may rely on their native title rights (even though non-exclusive) to ensure that overfishing and pollution is prevented, and that cultural property is protected. This result flows directly from the recognition of native title as a form of property, and from the respect which common law Counts accord to property rights.Unfortunately, the amendments proposed by the Prime Minister, and agreed to by yourself, do not accord the same respect to Indigenous rights. Subdivision H ensures that existing and future grants of offshore commercial interests will always be valid regardless of the existence of native title. Native title is permanently allocated to the bottom of the heap, and native titleholders retain only a right to compensation.It should be emphasised that, unlike in Canada, native title holders will not be entitled to rely on their common law property rights to prevent overfishing and pollution, and to protect sites of cultural importance. In other words, the amendments agreed between yourself and the Prime Minister, extinguish common law native title rights.Further, I am dismayed to find that, contrary to your recent claims in the media, the native title holders will not be able to rely on the protection of the Racial Discrimination Act 1975 (RDA) to protect their interests. The Prime Minister's amendments, to which you have agreed, expressly repeal the RDA (except in limited circumstances) regarding any provisions which clearly and unambiguously extinguish native title. Subdivision H is such a provision: it is clear and unambiguous in its effect on native title.In an interview with Fran Kelly on ABC Radio National on 6 July 1998, you stated:"I have not in any way undermined the common law native title rights of Aboriginal people, and challenge anyone to show that I have."The Federal Court has now answered that challenge. The amendments to which you have agreed plainly extinguish the common law native title rights of native title holders to seas in the Croker Island region of the Northern Territory.I also remind you of the personal assurances you have given me on several occasions since February 1997 that you would not allow extinguishment of our native title rights. I am deeply hurt by your failure to honour your commitments to me.You must now re-consider, as a matter of urgency, your agreement to the Prime Minister's Ten Point Plan. It is essential that the amendments do not, by pre-empting the Courts, extinguish common law nature title rights, and that offshore native title is accorded appropriate procedural protection. Consistent with basic principles of human rights, that protection must include the direct application of the Racial Discrimination Act 1975.Yours faithfullyGalarrwuy YunupinguCHAIRMANMEDIA RELEASE *THE SENATESENATOR HARRADINE'S RESPONSE TO NORTHERN LANDCOUNCIL CHAIRMANNorthern Land Council Chairman, Galarrwuy Yunupingu, has today issued a press release in which he has made reference to correspondence with me yesterday and a telephone conversation with me today.The NLC Chairman made reference to a personal commitment which I had given to him not to support the extinguishment of common law native title by statutory measures. In his letter the Chairman had made specific reference to subdivision H of the Native Title Amendment Bill as extinguishing the native title common law rights of native title holders over seas in the Croker Island region in the Northern Territory. I replied to the NLC Chairman by facsimile message this morning and I attach hereto a copy of that facsimile.In summary, my facsimile makes clear that:. the NLC Chairman has misunderstood the provisions of subdivision H in respect of acts such as fisheries licenses and similar arrangements as the Native Title Amendment bill in section S24HA(4) specifically states:"The non-extinguishment principle applies to the act.". I stood by my statement of 6 July that wherever the issue depended on my vote, the extinguishment of common law native title by statutory measures was rejected.. I informed the NLC Chairman that I had completely fulfilled my commitments given to him and others about the non-extinguishment of native title rights.Senator Brian Harradine, Canberra 7 July 1998Northern Land Council9 Rowling StreetCasuarinaNT 0810Phone: (08)89205100MEDIA RELEASEHARRADINE PROMISES HURT—YUNUPINGUNLC Chairman Galarrwuy Yunupingu today called on Independent Senator Brian Harradine to honour the promises that the Senator personally gave that he would not allow Indigenous native title rights to be extinguished.Mr Yunupingu said the personal assurances were given on three separate occasions over the last 12 months in Canberra."Senator Harradine made these promises to me—the last time was in April when I went to Canberra and met with him. Will he stand by his word now, or were our discussions in good faith all for nothing?", said Mr Yunupingu.Mr Yunupingu said he wrote to Senator Harradine last night in the wake of the Federal Court's decision in the Croker Island native title seas case, and spoke to him at lunchtime today in a bid to get Senator Harradine to change his mind."In my letter I said that I am deeply hurt at his failure to honour his commitments to me. And this is true," said Mr Yunupingu."Today, 1 told the Senator that the Ten Point Plan will reduce the strength of our native title rights. Indigenous people will have toothless native title—it will be in name only. "I also told him that the guts of our native title will be taken away by Mr Howard through his negotiations with Senator Harradine."We don't need Senator Harradine to save us from a race election. We can take the heat—let's see how terrible it is, really."If Senator Harradine is really for Indigenous people, for us, he should honour his commitments to me, and to all Indigenous people."Enough is enough—he must reconsider his position on the Native Tittle Amendment Bill and vote it down."7 July 1998 more information Ursula Raymond 08-89205 114 or 0417 803 425.Note: All NLC Media Releases and other information can be found on our internet web site at—http://www.ozemail.com.au/~nlc95.PARLIAMENT OF AUSTRALIA—THE SENATESENATOR BRIAN HARRADINE7 July 1998Mr G YunupinguChairmanNorthern Land CouncilPO Box 42921CASUARINA NT 0811Dear GalarrwuyRe: Native Title Amendment BillCroker Decision 6 July 1998Thank you for your facsimile message of 6 July concerning the abovementioned judgement. I am delighted, and rejoice with the traditional owners in learning that the Federal Court has recognised that native title exists off-shore.You suggest that subdivision H of the amending bill before the Senate extinguishes common law native title rights. You are clearly not referring to the compulsory acquisition sections of the subdivision which have the purpose of the state acquiring native title rights with compensation and after due process. There are similar provisions for on-shore areas elsewhere in the Bill. As I understand you, you are referring to other acts such as the granting of a lease or license to fish in an off-shore area and this you claim will also extinguish native title. For all such acts, I refer you to S24HA(4) which states:"The non-extinguishment principle applies to the act."The act referred to is any act, other than compulsory acquisition, e.g. a fisheries license. In no way, therefore, can these acts extinguish native title rights and interests as the Native Title Act specifically forbids such an effect. It is regrettable that S24HA(4) and equivalent provisions in the amending bill have not been brought to your attention. For the same reason, your remarks about the Racial Discrimination Act are also mistaken as subdivision H does not extinguish native title rights and interests as you suggest.I stand by my statement to Fran Kelly on ABC Radio National yesterday when I said "I have not in any way undermined the common law native title rights of Aboriginal people, and challenge anyone to show that I have.". That statement is true.You are simply mistaken in believing that any amendments I have supported and to which you have referred have the extinguishment effects on native title as you suppose. I recall my commitment about non-extinguishment on native title given to you earlier this year. Those commitments have been honoured in full.You are also misled in believing that I have now, or in the past, agreed to the Prime Minister's 10 Point Plan. As with other Parliamentarians and other parties I have been happy to support parts of that plan and I have vigorously opposed other parts of the plan, e.g. statutory extinguishment of native title.I enclose herewith. My media release on the Croker Island decision. My speech on the Native Title Amendment Bill given in the Senate on 6 July l998.. An analysis of the main points of proposed amendments released by me on 3 July 1998I would be happy to discuss the matters with you.With warmest regards.Yours sincerelySENATOR BRIAN HARRADINEMEDIA RELEASETHE SENATECROKER ISLAND DECISIONSenator Harradine has received the attached Memorandum of Advice from his legal advisers in respect of the judgment today by Olney J in the Croker Island Case (Yarmirr v Northern Territory).The Senator has conferred with the Special Minister for State, Senator Minchin, about the possible implications of the judgment of Olney J to the Native Title Amendment Bill. The Minister informed him that the Bill does not have any specific effect on the native title rights and interests of the successful claimants, as found by Olney J. This has been confirmed by Senator Harradine's legal advisers. Senator Harradine, however, indicated to the Minister that there is a definite need for the Government to consult with indigenous representatives to determine what further procedural rights are necessary for offshore areas.Senator Harradine acknowledged that in order to provide such rights, complex legal issues will need to be resolved in a proper and considered manner. This would preclude Parliament from dealing with the matter in the context of the debate on the current Bill.Senator Brian Harradine6 July 1998Memorandum of AdviceRe Croker Island Decision of 6 July 1998Today Justice Olney handed down his judgment in Yarmirr v Northern Territory (the Croker Island Case). His Honour indicated that he proposed to make a determination of native title "in relation to the sea and sea-bed within the claimed area".When the orders are finally made, this will be the fourth determination of native title in Australia, and the third under the Native Title Act (NTA). The others being Mabo (Common Law), Crescent Head (NTA) and Hopevale (NTA). What makes this determination different from the other three is that they related to onshore places while Croker relates to the sea and the sea-bed.Notwithstanding this distinction, nothing in the current Bill will adversely affect the continued existence of the native title of the successful applicants in any respect that does not apply to native title across Australia.There may, however, be a lacuna in relation to procedural rights. The NTA 1993 makes provision for right to negotiate (RTN) in respect of onshore places only (see s 26(1)). The NTAB also excludes offshore places from RTN (see s 26(3)).The NTAB does, however, contain Subdivision N which relates to future acts affecting offshore places. There are provisions for procedural rights in relation to acts which are the compulsory acquisition of the native title rights and interests (s 24NA(3)) and compensation is guaranteed (s 24NA(5)). In respect of other acts, s 24NA(4) expressly provides that the non-extinguishment principle applies and compensation is to be paid for the effect of those acts on native title (s 24NA(6)).As regards procedural rights, the provisions in Subdivision N are not as comprehensive as they are for future acts on onshore places. Section 24NA(8) provides that "native title holders have the same procedural rights as they would have in relation to the act on the assumption that they instead held any corresponding rights and interests in relation to the offshore place that are not native title rights and interests".Neither the Government nor the Opposition has been able to come up with a satisfactory legislative regime to deal with procedural rights for offshore places. It seems that there are theoretical legal difficulties which up until now have been too difficult to resolve. However, it is no longer a theoretical issue. It is now a matter that will need to be addressed by the Government. But it is doubtful whether that can or ought to be done quickly. If there are complex legal issues to be resolved then it would be better to do so in a proper and considered manner.6 July 1998J.A. McCARTHY QCJEFF KILDEAWentworth ChambersSydneyNIWGNational Indigenous Working Group on Native TitlePO Box 201Deakin WestACT 2600Tel: 61(2)6234 3330MEDIA STATEMENT 7/7/98The NIWG rejects Senator Harradine's repeated claims that he has agreed to nothing which will effect the extinguishment of native title.Although the "non-extinguishment principle" applies to the Native Title Act, in practice the Howard/Harradine amendments will effectively extinguish native title because native title holders will be unable to exercise, enjoy or protect their native title rights.The Bill as a whole enables the States and Territories to effectively extinguish native title over vast areas of the Australian continent through upgrading of pastoral leases and through inadequate consultation procedures under State and Territory regimes.The mechanisms for extinguishment by States are:. Primary production upgrading of pastoral leases—can effect extinguishment without any consultation with native title holders. S43A "Alternative to the Right to Negotiate" provisions allow States and Territories to establish consultative regimes on pastoral leases, public purpose reserves, national parks, without adequate protection of native title rights.The right to negotiate provisions which protect native title will apply only to vacant Crown land which has never been subject to a previous grant. Less than 5% of the continent falls into this category. The following figures (drawn from AUSLIG Land Tenure Map 93 020) show how much land over which native title rights will be rendered ineffective and how little land will be subject to Right to Negotiate provisions (this does not include figures on national parks and public reserves where State regimes will also apply).WA: 36% Crown leasehold, mainly pastoral land; 34.2% vacant Crown landSA: 42.5% Crown leasehold, mainly pastoral land; 0.8% vacant Crown landNT: 49.6% Crown leasehold, mainly pastoral land; 6.4% vacant Crown landQLD: 54.4% Crown leasehold, mainly pastoral land; 0% vacant Crown landNSW: 38.5% Crown leasehold, mainly pastoral land; 0.2% vacant Crown landACT: 37.5% pastoral leasehold; 0% vacant Crown landVIC: negligible pastoral leasehold; 27% reserve land (subject to State regime under S43A); 0% vacant Crown landTAS: negligible pastoral leasehold; 0% vacant Crown land;(NB: Vacant Crown land figures are for all vacant Crown land, the RTN will only apply where the land has never been subject to a previous grant).6H4Harradine, Sen BrianSenator HARRADINE—I think it is very important that we get it perfectly clear that I have not, when it comes to my vote, also agreed to any extinguishment of native title. Ah, but the Labor Party has. Why? Because it was former Premier Goss that started the ball rolling. You have agreed to the validation of extinguishment—XE4BOLKUSSenator Bolkus—We got nothing through without you, Brian.6H4Harradine, Sen BrianSenator HARRADINE—Come on! You and the government agreed to the validation of extinguishment in respect of those acts that took place between the Native Title Act and the Wik decision. That is yours. It is a little bit hypocritical to go around through the back door and say to the indigenous people that Harradine is agreeing to the extinguishment of native title when in fact I am not. When the matters come down to my vote, I have on all occasions refused to vote for the extinguishment of native title.20:36:005165Brown, Sen BobSenator BROWNQD4TASAG00—`O, what a tangled web we weave, When first we practise to deceive'. You end up deceiving yourself, and I believe that is what Senator Harradine has done. He keeps saying that he has not extinguished anybody's title. But what he has been engaged in is a broad-scale extinguishment of the powers that people have on the land to which they are entitled. You see, that is the deception that Senator Harradine practises. I and other speakers have said here throughout that claims are one thing, recognition of traditional ownership of the land is one thing—but empowerment to do something about what happens on that land is the other.Senator Harradine, in his self-adulatory fashion, says, `I haven't extinguished any title.' But Senator Harradine has been involved in secret negotiations, which have changed his self-professed honourable position of just last April, and certainly last December, and which have led to a very massive wind-back in the powers that indigenous people have to say something about what happens on their land. What is the point of having your title recognised if you are helpless to do anything about it afterwards or, if, when it comes down to key decisions of people who invade your land with developmental purposes rolled up under their arms, you find that they have the QCs, the political contacts and the ability to influence the mining wardens court, the state minister or the federal minister, who ends up with ultimate say under this Harradine prescription?I told the committee a little earlier about Senator Harradine's previous position when he opposed section 43A as it then stood. And he did so, he said, because he maintained:. . . it is of very little use to be a native title holder unless there is a right to negotiate, and an effective right to negotiate in respect of the specific interests and rights of those particular holders.But what he has been involved in here is taking out the word `effective'. He has served up to the indigenous people of this country a big bundle of wish and wash—he and Prime Minister Howard, behind closed doors with the indigenous people locked out but the resource extractors very much part of the process.I get sick of hearing Senator Harradine beat his own drum about what a high-minded person he is and how he knows what is right for the indigenous people, and his patronising way of telling other members of this House that they do not understand the legislation—be it Senator Bolkus, me or somebody else—the way he does. This imperious view that Senator Harradine peddles to himself does not wash with me or many other people. It certainly does not wash with the indigenous people. That is why that magnificent character of the Wik people with whom he danced some weeks ago told him she wanted her headband back—because she had lost her trust in him. That is why she told him to take his hand down from his face and look her in the eyes. She detected a shiftiness there and a failure to be as noble as Senator Harradine would have it of himself.History will be the judge here. Senator Harradine will go away well pleased with himself and the publicity. But the indigenous people are leaving this place sad and distressed and feeling that they have lost out badly and been disempowered. We know the Howard government's point of view on this. We know why it has devised this racist legislation, this disempowering legislation. What we did not know, although I have been predicting it for some time because I have watched the form of Senator Harradine, was that he would become complicit in the way he has. It is not going to be him who suffers the consequences of that, it is the indigenous people of this country, and for a long time to come. And when they are put upon and robbed in this fashion, the whole of the country suffers.Along with a certain other party's immigration policies, this stealing of the rights of the indigenous people featured prominently on the front pages of newspapers elsewhere in the world a week ago. Is that something that Senator Harradine is really proud of? If he is, he thinks differently from me. It may be because of that difference of thinking that he can arrogate to himself this ability to divine that almost everybody in this country is too simple to understand what is going on here except him and one or two others, as he repeatedly tells the press.It is a bit rich of Senator Harradine to waggle his finger at other people in this place and by inference at the indigenous people of this country and say that he knows what is good for them; he does not. And he does not speak for them. He does not represent them. And he has not stood ground for them. All those epithets about honourable, fair and just are hollow. The only place they are booming is in the words that come from his chair.20:44:005166Cooney, Sen BarneySenator COONEYSF4VICALP00—I would like to return to a question about paragraph (4)(e), which talks about the independent person or body. Senator Minchin has answered this but I would like to raise it again. The example given there is a mining warden. The body suggested is equivalent in many ways to the National Native Title Tribunal, which has a former judge of the Federal Court heading it up.When this becomes an act and when the body goes into operation, the question of who is going to be on these tribunals, courts and independent bodies is going to be crucial. It just seems to me that a mining warden would not be a sufficient person to have in charge of that. You should have somebody who is equivalent to a Federal Court or a Supreme Court judge, because the issues that he or she will have to decide are going to be very crucial ones and he or she will be making law to start off with and from then on. To leave that sort of function to a person who might not be qualified and who, as Senator Brown said, would feel overwhelmed by silks and counsel seems to be a terribly dangerous path. I was wondering whether the government could take on board the need to allow only those people of proper qualifications to form the independent person or body that is referred to in that paragraph.20:46:005166Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—This does raise a number of issues which I guess are worth addressing. I remind the chamber that, as a result of the Brandy decision, the basic scheme of the Native Title Act was deemed unconstitutional. Here we are talking about the constitutionality of this thing, but it is unconstitutional to give a power to make determinations of native title to an administrative tribunal. That is now done de facto by the Federal Court and will be done properly under the amendments of this act by the Federal Court because, according to Brandy, only the court can make determinations of that kind.As a part of this amendment package, given the nature of the change in the tribunal, the president of the tribunal need not any longer be a judge because these are essentially administrative decisions. Typically, the tribunal's activities of determining whether future acts should occur under the future act regime are not done by a judge of the tribunal; they are done by administrative means by a non-judicial person on the tribunal. This replicates that. In fact, based on the case that again flowed from the whole Hindmarsh Island issue—the Matthews case—the executive cannot take judges and put them in charge of administrative functions. That was the problem with that case, so you have it coming at you both ways in terms of the appropriate person doing the job.This is not a determination of native title. It is an administrative process of determining whether a mining lease is to be issued or not. There is no determination of native title. That can only occur by a judge in the Federal Court. As is the case now with the Native Title Tribunal, where these are administrative decisions performed administratively by non-judicial people, so it will be the case with the administrative task set out in paragraph (4)(e).20:48:005167Cooney, Sen BarneySenator COONEYSF4VICALP00—Paragraph (4)(b) says:. . . give any claimant or body corporate the right to object . . . Then (4)(e) says:. . . if any person objects as mentioned in paragraph (b), provide for the objection to be heard by an independent person or body;Then (4)(g) says:. . . 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 . . . So (4)(g) would seem to give that independent body a power to require compliance.20:49:005167Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I do not think it changes the character of the decision as administered. In a sense, what we are on about is the issuing of a licence. In this case, it is a mining lease; it might as well as be a driving licence for the purposes of the analogy. Once issued, it has effect of course but that decision must be subject to judicial review, so the administrative process must be able to be reviewed judicially for this scheme to be approved. I do not think (4)(g) changes the essential nature or brings into any question the process that is laid down.20:50:005167Cooney, Sen BarneySenator COONEYSF4VICALP00—I can understand that but what if it were a motor car licence that was at issue? This is really somebody objecting to that licence being granted and, if you have a person who is well disposed to grant licences, the person objecting may find a lot of difficulty having his or her objection upheld; whereas if the person to whom the application was made was of a different character than one who likes to issue licences, then the result would be different. What you want is a fair result and, if you have a person who has the capacity both in terms of status and of learning to be fair, then you are going to get a better result.20:50:005167Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—The whole scheme of the Native Title Act, and certainly under these amendments in the scheme that I believe met with approval, is that so far as the future act regime is concerned, that is dealt with administratively through the tribunal. This simply replicates that scheme. That is the process. The administrative scheme now takes place every day of the week with respect to the issue of approvals to engage in certain activity on land, be it mining or otherwise. Those are administrative processes which in many cases do contemplate the possibility that other citizens can object through an administrative tribunal process, as happens in many areas of territory, state and federal law, and this is no different. It simply requires that the appropriate administrative procedures are there and that they can be reviewed judicially. It is no different to the way the Native Title Tribunal operates in its administrative function of hearing, in effect, objections to the issue of mining leases now.20:52:005168Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I have been trying to get the call for a while, but we needed to complete that discussion. It was useful. I actually wanted to get the call because I wanted to agree strongly with something Senator Harradine said. Senator Harradine, I do agree that there are many of us who do not understand fully the implications, for instance, of the Croker Island case. I have no problem admitting that because it has just occurred.For that reason, to tell you the truth, if I thought it would help, I would move that we refer the bill to a committee. Quite clearly, we do not understand the implications of the Croker Island case. Despite some assertions that it is all covered, I do not have the confidence. I just do not think it is possible to have the confidence that we have been able to cover the implications of that Federal Court hearing yesterday. If I thought it would help, I would now move that the bill be referred to a Senate committee for further consideration, but I do not think that would help, and I will not do it.Let me underline the advice that Mr McCarthy and Jeff Kildea have given because I think they have said some very wise things in their memorandum, and I just want to record it. They state:Neither the government nor the opposition has been able to come up with a satisfactory legislative regime to deal with procedural rights for offshore places. It seems that there are theoretical legal difficulties which up until now have been too difficult to resolve. However, it is no longer a theoretical issue. It is now a matter that will need to be addressed by the government. But it is doubtful whether that can or ought to be done quickly. If there are complex legal issues to be resolved, it would be better to do so in a proper and considered manner.That is what prompted me to say that perhaps we need to refer this bill to a committee, but I will not do that. I will not even test the Senate's patience. But I do want to make some other remarks. Before we take the vote on the right to negotiate, which I regard to be one of the key issues in this whole debate, there are a few things I want to put on the record.It is with a heavy heart that I rise again tonight to let the people of Australia know why the Democrats will vote against the Howard government's 10-point Wik plan. We will vote against the amended Wik bill because it turns back the clock. That is what we believe. It takes Australia back to the days when indigenous people were given beads and blankets. It blurs the vision—and I do not mind saying this—of Paul Keating's 1993 Native Title Bill, which the Democrats supported.The Native Title Amendment Bill 1997 [No. 2] has effectively gutted the 1993 legislation of the right to negotiate. There should not be any mistake about that. It is what the mining council says. It is what the Prime Minister (Mr Howard) told regional television last night. It is what brought the silence of the Western Australian senators and their Premier.We do not know yet if there were any undertakings given to Senator Harradine, for example, in return for his acquiescence on Wik, perhaps we shall see in the coming weeks. But, I must say, the Democrats are not for sale. That is why we have opposed the Wik 10-point plan all along. We think it is bad for Australia. I previously mentioned how New Zealand, the United States and Canada have recognised native title rights of their indigenous people and come to terms with rights to negotiate, leaving Australia out in the cold.I believe this bill is a denial of the 1967 referendum where the vast majority of Australians voted to give indigenous Australians a fair go. I do not believe that the Wik 10-point plan, even garnished with Senator Harradine's amendments, represents a fair go for Aboriginal and Islander people.The bill is certainly a nod in the direction of the One Nation Party, whose performance at the Queensland election obviously spooked the Prime Minister into doing this deal with Senator Harradine. Rather than reject the false gods of One Nation—their lies, their distortions, their hate—the Prime Minister, I believe, has tipped his hat in their direction. That has been his attitude all along, and that is sad for Australia.The Democrats are glad that Australia may be spared a destructive race based double dissolution election, but we have always maintained that the issue of a double dissolution is the Prime Minister's call. It is not the Democrats' call. It is not Senator Harradine's call. It is not Frank Brennan's call. It is not Noel Pearson's call.I have to say that quite a few players, I believe, have overstepped their mandates during the Wik debate. A few players have been a bit too clever by half and failed to recognise the need to operate within an appropriate framework of recognition of the primacy of indigenous culture and law. The tragic result of this has been division among people who should be working together for justice for indigenous people. Political games that are too clever often come unstuck. That is why the Democrats will not play them. We believe the Wik bill is unfair. That is it. End of story. It is unjust. It is regressive. It is unworkable. Therefore, we will not vote for it.To the indigenous people listening to this debate tonight and sitting in the public gallery, our hearts are with you. At each debate—first in December 1997 and in April this year—we noted, as we do now, the absence of indigenous people on the floor of this Senate. It is a situation that must be rectified in the not too distant future. To the Wik people at Aurukun particularly, the Democrats are with you. To all the non-indigenous Australians who have worked so hard through ANTaR and other pro-native title groups, the Democrats commend your work and we say to you that the struggle is not over.I would like to pay tribute to the Democrats candidate for the Senate in New South Wales, the man I hope will be the first Aboriginal member of federal parliament from a progressive party, Aden Ridgeway, who is also a member of the National Indigenous Working Group. I feel that Aden has left the political games to one side and called the game straight all the way through, and I commend him for that.I have just learned that Premier Court has this day opened up a second front in Western Australia in making derogatory remarks about Democrat MLC Helen Hodgson and her role in that state's upper house. Much of the 10-point plan is about bypassing the Commonwealth's responsibility and buck passing to the states—hardly the level of Australian governments that have distinguished themselves in black and white relations in the past 210 years. There is, however, now one important difference: that is, in many upper houses, the Democrats now hold or at least share the balance of power.Since January this year, I have been in contact with my state colleagues: Helen Hodgson and Norm Kelly in the west, Mike Elliott, Sandra Kanck and Ian Gilfillan in South Australia; and recently sworn in Dr Arthur Chesterfield Evans in New South Wales. In parliaments where Democrats are not yet present, we will contact those Independents and like-minded parties. For those Democrats who can make a difference, we are as one in our thinking. The new stage of this debate will be played out in the states, and we will hold firm our position there.I look forward to the continuing cooperation of the Australian Labor Party and the Greens in this regard, and I pay tribute to them. This legislation will undoubtedly now head for the courts, and Mr Richard Court is undoubtedly headed for an engagement with his upper house.It has been a long haul. This Wik legislation is at an historic phase, but it is not the final phase—not by a long shot—and this is an historic moment. But, while this unjust legislation may be passed, I want history to record that the Democrats did not agree, and I know a huge groundswell of Australians also do not agree. We will continue to agitate for justice for Aboriginal people. The fight is a long way from over.21:01:005169Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I must say it is more in sadness than in anger that I suggest to Senator Woodley he should withdraw what I was appalled to hear was the suggestion that somehow we had bribed Senator Harradine to get his support on this bill. I think that is absolutely beneath you, Senator Woodley, a man that generally speaking does not indulge in such indecencies. It is an appalling reflection on Senator Harradine. I do not mind your reflecting on the government; you can go for your life. But I think that is an outrageous and unparliamentary reflection on Senator Harradine. It is quite unfair and uncalled for. Debate the merits of what he is putting forward, not the motive. Can I also say this furphy that has been flying around for 24 hours as a political grab—HX5WOODLEYSenator Woodley—Mr Chairman, I raise a point of order: I am happy to wait until the end but it is important that, if there was that imputation, I certainly withdraw it. I was not implying that Senator Harradine had been bribed. I was saying that I guess for him there is some benefit in cooperating with the government on this bill in the same way as he obtained benefits for Tasmania, which we all recognised, through the sale of Telstra.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Ferguson)—Senator Woodley, that is hardly a point of order. If you want to make a personal explanation, please do it at the appropriate time.JX4Minchin, Sen NickSenator MINCHIN—I want to put to rest what I regard as the complete furphy being perpetrated that, somehow, the Croker Island decision came out of the blue and renders uncertain much of this legislation. In fact, the Croker Island decision attests to the foresight and the careful planning embodied in this legislation. It was put to us by many people that the idea of native title offshore either is a nonsense or should not exist and you should provide for its extinguishment. We said, `We are not sure to what extent, if any, native title can exist offshore. But we are going to make certain that the Native Title Act, as amended by us, does properly allow for, and provide for, the possibility that native title may well be found to exist offshore.'We have consolidated the scheme as set out in the current Native Title Act with respect to that possibility and made clear that future grants in relation to native title offshore will be valid but the non-extinguishment principle applies. And that includes the grant of mining leases offshore. Native title offshore can only be extinguished by non-discriminatory acquisition of native title rights or by agreement.The holders of native title offshore will have procedural rights equivalent to the procedural rights that a non-native title holder would have if they possessed corresponding rights and interests. That has been extended to registered native title claimants as well as native title holders, and compensation is generally payable. That is all in the current Native Title Act and consolidated in our bill.In addition, the bill creates procedural rights not in the current NTA in relation to any grant relating to the regulation or management of offshore waters and the living aquatic resources. There is also special provision for the intertidal zone. So we went to considerable lengths to allow for the possibility of such a decision being made. The decision is very much in line with what we expected would be the content of native title if it was found to exist; that is, a right to exercise traditional hunting, fishing and access rights. That is entirely in line with what we contemplated may be the case in drafting these provisions, which set out quite clearly the rights and obligations of state governments with respect to grants offshore that may affect native title and the procedural rights attaching to that native title.Quite to the contrary of what is being argued, I assert very strongly that the Croker Island decision does attest to the comprehensive nature of this Native Title Amendment Bill 1997 [No. 2] . Now, the question has been raised that there may be a need to examine further the procedural rights attaching to offshore native title. I am not sure that is the case but, in a spirit of generosity, as the new act beds down and as we learn more about the nature of native title offshore or anywhere else, I as the responsible minister obviously will always have a door open to those who believe that the procedural rights as laid down are not satisfactory or are inadequate or need to be reviewed in any way. I do respect the skills and expertise of Mr McCarthy and Mr Kildea and take their suggestions seriously.I will be quite happy to discuss with all parties over the months ahead the nature of the rights and obligations set down in the act and the extent to which they are appropriate. But we do believe that the other parties are engaging in a complete furphy by suggesting that this decision has somehow come out of the blue and that this bill does not adequately contemplate such a decision.21:06:005171Bolkus, Sen NickSenator BOLKUSXE4SAALP00—We could debate this for much longer, and we have in the course of the day. The point that needs to be made at this stage is: how can you compare rights in the way that Senator Minchin clinically attempts to do? How can you claim that it is a comparable rights arrangement when you compare a commercial fishing licence with rights recognised in the Croker Island decision—for instance, the right to conduct and protect traditional ceremonies or the right to preserve and protect sacred sites? They are chalk and cheese, and that is why there needs to be an appreciation of the difference in the sorts of rights we are talking about.Senator Minchin, that clinical assessment is one that you make, but it really does not stand up to the test of analysis, nor do your other claims in respect of the Croker Island decision. You may not extinguish, but you extinguish the avenues of access to protection of native title in a whole range of areas, and that is where this legislation is inadequate, that is where this legislation will lead to further Commonwealth processes, that is where this legislation will lead to greater frustration by other stakeholders, and that is where this legislation will lead us back into the Senate again.As I said, we have had an extensive debate on this particular point in the course of the day, as we have on most other issues as well. I do not think I will continue much further on it.21:08:005171Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I have reread my notes for the speech that I have just made, and I accept that that imputation may have been there. I did not intend it, and I certainly would make it clear that the Senate should understand that I certainly withdraw any imputation of a bribe on Senator Harradine's part. I certainly did not intend that.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Ferguson)—The question is that the committee not insist on the amendments relating to the right to negotiate not agreed to by the House. Question put.21:13:00The committee divided. (The Temporary Chairman—Senator A.B. Ferguson)34Abetz, E. Boswell, R. L. D.Brownhill, D. G. C. Calvert, P. H.Campbell, I. G. Chapman, H. G. P.Colston, M. A. Coonan, H.Crane, W. Eggleston, A.Ellison, C. Ferguson, A. B.Ferris, J. Gibson, B. F.Harradine, B. Heffernan, W. *Herron, J. Hill, R. M.Knowles, S. C. Lightfoot, P. R.Macdonald, I. Macdonald, S.McGauran, J. J. J. Minchin, N. H.Newman, J. M. O'Chee, W. G.Parer, W. R. Patterson, K. C. L.Payne, M. A.Reid, M. E.Tambling, G. E. J. Tierney, J.Troeth, J. Watson, J. O. W.32Allison, L. Bartlett, A. J. J.Bishop, M. Bolkus, N.Bourne, V. Brown, B.Carr, K. Collins, J. M. A.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.Mackay, S. Margetts, D.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.Alston, R. K. R. Murphy, S. M.Kemp, R. Conroy, S.MacGibbon, D. J. McKiernan, J. P.Synon, K. M. Stott Despoja, N.Vanstone, A. E. Campbell, G.* denotes tellerQuestion so resolved in the affirmative.10000CHAIRMANThe CHAIRMAN—The question is that the committee does not insist on the remainder of the amendments disagreed to by the House.XE4BOLKUSSenator Bolkus—We will not press for a division, but let the record show that the opposition does support pressing the amendments that were not agreed to by the House of Representatives.QD4BROWNSenator Brown—Likewise the Greens.HX5WOODLEYSenator Woodley—I would be grateful if the Democrats' dissent to the motion could be recorded.Question resolved in the affirmative.10000CHAIRMANThe CHAIRMAN—The question now is that the committee agrees to the amendments made by the House to the bill.21:16:005172Brown, Sen BobSenator BROWNQD4TASAG00—I move:(AH1) Amendment (H65), omit subsection 43A(7), substitute: Requirement to be satisfied: preservation of areas of significance(7) For the purposes of paragraph (1)(b), the alternative provisions comply with this subsection if, in the opinion of the Commonwealth Minister, a law of the Commonwealth, the State or the Territory provides, in relation to the whole of the land or waters to which the alternative provisions relate, for 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.Senators will know that part of the new provisions for the right to negotiate is for the states to set up a regime under certain provisions, and if those provisions satisfy the federal minister then the right to negotiate can go via that state avenue. But in subsection (7), which is a pivotal provision, there appears to be a grammatical error, to say the least, because it does not make sense. This is a pivotal subsection because it is a requirement that the states or territories have a proper mechanism for the preservation of areas of significance to the indigenous people. The provision as it stands does not make sense. The provision as I have put it reads:For the purposes of paragraph (1)(b)—for the purposes of the state regime being okay—the alternative provisions comply with this subsection if, in the opinion of the Commonwealth Minister, a law of the Commonwealth, the State or the Territory provides, in relation to the whole of the land or waters to which the alternative provisions relate, for 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.I will not read out the government's and Senator Harradine's version of this, but it does not make grammatical sense. I believe that the amendment I have put forward has the same effect. It uses basically the same words, but it is grammatically correct and it will avoid the potential problem of each state or territory having to sort out what this provision means before it can set up and have validated its own regimen for the right to negotiate. And, I might say, that is going to save a lot of people a lot of money and time and wasted effort in the court. I should leave it at this stage to Senator Minchin or Senator Harradine to see whether they accept the point that I have made and, if not, to explain just how you do make grammatical sense out of the provision as it stands.21:19:005172Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—It is a funny thing about the law, but every single word does have a special and particular meaning and special and particular consequences, so the words have been chosen quite deliberately. The word `for' would quite significantly change the meaning and the operational workability of what is proposed here.If the amendment was to be accepted, it could have the effect that the minister could not make a determination under section 43A unless there was a law in place that the law itself preserved or protected particular areas of indigenous significance. A law that pro vides a process that facilitates the protection or preservation of sites of significance may not satisfy the requirements of Senator Brown's amendment, notwithstanding the level of protection such a law actually provides. So we would have considerable difficulty with Senator Brown's amendment because it would mean that laws that provide processes by which there is protection may not satisfy these requirements. If you say `for', it means that the law itself does that rather than setting in place the appropriate processes for the preservation and protection. So the words were chosen quite deliberately, and we quite deliberately do not accept the amendment.21:21:005173Brown, Sen BobSenator BROWNQD4TASAG00—I challenge Senator Minchin if I can, because it is important, to read out this clause to the committee so that it does make sense.21:21:005173Bolkus, Sen NickSenator BOLKUSXE4SAALP00—The opposition supports Senator Brown's amendment in respect of this grammatical mistake. He also has another two amendments with respect to water which I indicate at this stage we support as well.21:21:005173Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I am not sure whether this is a reading test, but I think you are referring to subsection (7):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.In other words, a law of a state provides for the whole of the land or waters to which the alternative provisions relate, in relation to the preservation or protection of areas. You may think that is a little cumbersome, but it is not nearly as cumbersome as many acts of parliament to which we are all exposed every day of the week. We have quite deliberately chosen the words `in relation to' to ensure that laws which set out processes by which there are protections for and preservation of sites of significance can meet these requirements.If you choose the word `for', which you might otherwise think was the appropriate word, it does substantially change the legal meaning of this section in such a way as to severely restrict the sorts of laws which would meet this requirement, without changing the real substance of what is trying to be achieved. In many cases, what you are talking about is ensuring that there are processes in place whereby these protections are provided and that there are laws which set up those processes. If you put `for' in there, it means that the law itself does the preservation or protection. That would significantly narrow the scope in a way that does not achieve your purpose or make any particular sense.21:23:005173Brown, Sen BobSenator BROWNQD4TASAG00—My amendment says that this law provides for the preservation or protection of an area that is of significance to the indigenous people. I ask the government: what does the law provide for in the section as it stands? The words are:. . . a law . . . provides, for the whole of the land or waters to which the alternative provisions relate, in relation to the preservation or protection of areas—But it does not say what it provides.21:24:005173Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—Again, I can do more than say that it provides in relation to the preservation or protection of areas. They are laws which relate to the preservation or protection of areas or sites of particular significance. I accept that it is clumsy language—the law often is—but it is deliberately done that way to ensure that laws that relate to the preservation or protection of areas or sites of significance can comply with these requirements. In other words, as I said before, they set out a process by which there is preservation or protection of areas or sites of significance, rather than being a law specifically for that purpose, which is not often the case. Often a law will set out the process by which there is a mechanism or a process for the protection to be provided, rather than the law itself actually doing that.21:25:005174Brown, Sen BobSenator BROWNQD4TASAG00—It is an obligation of parliament to be clear about what it means. It is very bad law making for the parliament to deliberately leave `clumsy language', to quote the minister, in a provision for the court to disentangle. I did not prepare this amendment, I might say. It has come from very eminent legal advice—they might even come outside the scorching criticism of Senator Harradine for certain legal people who disagree with him. It is very important that the government be clear here, and I think it is very important that we do not pass a provision with clumsy language which is not grammatically intact and does not say what it sets out to do.If the government means that any provisions in any laws which relate to the protection of areas will do, it should say so. I thought the whole point here was to make sure that the provisions provide for the protection of areas of significance to the indigenous people. If that is the aim of this section, it ought to say so.21:26:005174Bolkus, Sen NickSenator BOLKUSXE4SAALP00—Before the minister responds, Senator Brown may be anticipating that this particular provision would provide for protection and, as a consequence, he would be looking for an object in this sentence, and that object would probably need to reflect a regime of protection. Unfortunately, I do not think it is a mistake of grammar. I think it is a very clear intention on the part of the government. All they really want is a clause that says `we will provide for' but does not say what will be provided for. There is no real intention here to provide for any effective regime at all. If there were, it would be spelt out. To the extent that it is not spelt out, there is no intention to do so. You may be looking for something the government is not keen to provide, and I think the grammatical error that you are talking about is not a grammatical error. It is a clear policy intention to not provide anything effective as a regime.21:27:005174Brown, Sen BobSenator BROWNQD4TASAG00—If that is the case, and it seems to be what the minister is saying, my question is: does Senator Harradine agree that that was the intent of this provision? I doubt that very much, and I would like to hear what Senator Harradine's view is on this provision as it stands, because it is a very critical provision.21:28:005174Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—Just before Senator Harradine responds, there are other provisions of the bill which contain similar clauses. Section 24KA, facilities for services to the public, requires that: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 in which the act is done; and (ii) of particular significance . . .This would read better, I concede, but it would not change the meaning legally if it said, `a state or territory makes provision for the whole of the land or waters to which the alternative provisions relate, in relation to . . . ' It makes provision in relation to the preservation, as we have in this section and, I imagine, in other parts of this bill.If you say it is a `law for' you are restricting it to a particular site. This is saying that the state must have a regime in place in relation to the preservation or protection of sites of significance, as we have done in section 24KA. That is what we are replicating here. It can only go ahead if there is, in that state, a regime in place which does that job in relation to preservation or protection. If you say `for' that just narrows it down to the particular, if you have a law that specifically protects a particular site, and that is not what we are on about here. A scheme can only be approved if the state has laws which achieve that outcome. In other words, there must be a process for achieving that outcome.21:30:005174Brown, Sen BobSenator BROWNQD4TASAG00—The heading of this section—and this is the government's heading—is `Requirement to be satisfied: preservation of areas of significance'. My amendment says that that requirement is to be met, that there be a provision for the preservation of areas of significance. That is what the law is to mean. But somehow between that heading and what the government has here there is a whole lot of confusion and clumsy language. I ask the minister, and indeed Senator Harradine, to look at this again because it is very important. This should not be left to the courts to disentangle.If the meaning of the heading is dinkum, for the life of me I cannot see why plain language, which this amendment is, to meet that requirement for the preservation of areas of significance is not adopted instead of the admittedly clumsy language we now have, which I think is inherently inexplicable and which is going to lead to a lawyers' picnic somewhere along the line. I do not think we, as a committee, should let that go. I ask the government to look again at this amendment, which is much clearer and says what the heading means. I ask Senator Harradine to do the same.21:31:005175Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I have nothing to add to this discussion.21:31:005175Brown, Sen BobSenator BROWNQD4TASAG00—That surprises me, because Senator Harradine has said that he has a knowledge about this material which very few of us, and certainly not Senator Bolkus, share. I thought he would have been able to clarify the situation here and at least come down on one side or the other. But it appears that that knowledge is not complete when it comes to this matter. What do you do? The numbers go with the clumsy language.Amendment not agreed to.21:32:005175Bolkus, Sen NickSenator BOLKUSXE4SAALP00—Before we move to Senator Brown's next amendment, I indicate to the committee that I have asked for a motion to suspend standing orders to be prepared. You do not have to take fright immediately at this, Senator Minchin. I have been informed that photographers have asked to be allowed in to photograph the final vote on this particular legislation, and they have been advised by the President's office that it is the will of the majority of the Senate that that not be allowed. I think that is totally unreasonable. In the same way that we have embarked upon this process and delivered it to this parliament in secrecy, photographs are not going to be allowed to be taken of the final deliberations of this vote. If camera people want to take photographs, I think it should be within their power and capacity do so.Once we leave the committee stage, I will move suspension of standing orders to allow photographers in. I signal that now so that people can think about it. There may be an easier way to allow photographs to take place, but I would have thought that, given the degree of press coverage of this particular issue and given the degree of public interest in it, the one thing we could do is show a degree of flexibility when it comes to press photographers being allowed in for the final vote. Maybe Senator Minchin can discuss this with some of his colleagues to see whether there is any way we can obviate the necessity to go through a formal process.21:34:005175Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I think I am at liberty to indicate that when this matter has been discussed in our Senate party room there has been universal opposition to it. I am confident in saying that from the government's point of view we would oppose the motion.21:34:005175Brown, Sen BobSenator BROWNQD4TASAG00—That is the problem with having things discussed in rooms outside this place and then being translated into—EP5FERGUSONSenator Ferguson—Our party room is a bit bigger than yours.QD4Brown, Sen BobSenator BROWN—Yes, but you are a minority. Don't forget that. Senator Bolkus is quite correct. The events here are being televised. How absurd that photographers would not be allowed in to cover all of it, let alone the concluding stages. I move:(AH2) Amendment H21, after "forms" (second occurring), insert ", other than water below the high water mark and living aquatic resources in those waters,".This amendment relates to the Croker Island decision where it was found that the seas and the seabed of the specified area were actually claimable by the indigenous people. As has now become routine, the resources which the indigenous people rely upon have apparently been taken one step further out of their reach. At least this amendment tries to return some fairness to this.Senator Harradine has said a number of times tonight that the special indigenous interest should be recognised while everybody is treated with an equal hand. This legislation as it stands does not treat people with an equal hand. I just want to read the reasoning behind amendments AH2 and AH3. It states:The effect of them is that governments would be required to treat native title holders in the same way as holders of corresponding interests, as non-indigenous people. For example, if the native title included the right to fish, the corresponding right is a licence to fish, as with commercial fisheries. If there are share managed fisheries, the native title would be equivalent to owning a share in that fishery. This would mean any regulation or interference in the native title rights would require at least the same treatment and procedural rights as those of fishermen holding shares in a particular fishery. To do otherwise—and that is what the current position is—would be to prefer the property interests of non-indigenous Australians over those of indigenous peoples.This, again, is coming from eminent legal advice. It puts somewhat on the skids Senator Harradine's contention that non-indigenous people are not being given second rate treatment. I repeat: to leave matters as they are would be to prefer the property interests of non-indigenous Australians over those of indigenous people. These amendments are to correct that. To continue:Commercial fisheries in Australia are in the process of being converted to various forms of share management. Unless indigenous people are recognised as having a stake in these fisheries on account of their native title, including a say in their ongoing management, this regulation process—and we see it in this legislation—becomes a form of appropriation, even if some national compensation is paid, and that no doubt would be calculated on a convenient assumption that any native title rights do not extend to commercial takings.These amendments give indigenous people at least the same rights as commercial undertakings that are moving in on their fisheries. They are rights that are likely to be nullified if this provision is left standing. This is a very important outcome. I again say to Senator Harradine: having your right to the land or the seas recognised is one thing; being disempowered, as through this legislation, is another. Indigenous people are being disempowered here. This amendment makes sure that the scales are weighted a little more evenly so that indigenous people at least have the same rights as commercial fishing operations.21:38:005176Harradine, Sen BrianSenator HARRADINE6H4TASIND00—Again Senator Brown I believe does not go to the key of the Olney J. decision. It was a Wik type decision and, in that respect, the rights of the leaseholders would prevail. Of course, what we need to have are proper procedures to determine the issue; I understand that. The problem we have is that the 1993 legislation is not adequate for this position to see how the various native title interests can be protected against the principle with the priority of the other rights, as per Wik. I have gone into this, and I have been advised about this matter. The advice I have been given has been acknowledged around the chamber as being very good advice—and that is the advice from McCarthy QC and Kildea of the New South Wales bar.I did confer with Senator Minchin yesterday evening about the implications of the Federal Court decision. The minister informed me that this legislation—as I think everybody around the chamber realises—does not have any specific effect on the native title rights and interests of successful claimants, as found by Olney J. That was my view—and it was my initial view without anything being said.I did, however, indicate to the minister that it was my desire he should take immediate steps to consult with the persons directly concerned, the native titleholders—and let me remind the chamber that that is only the third case to have succeeded since the coming into force of the 1993 Native Title Act; of all the applicants for native title status, it is only the third to have succeeded. It is unbelievable, but that is the case. It is indicative, of course, that the 1993 act is not fully working to the benefit of the indigenous people of Australia, which is what I have been saying all along.The minister did say that he would—and he has repeated here that he will—consult with indigenous people and their representatives to determine what procedures or procedural rights, further than those that are currently in the act, would be necessary for offshore areas. I acknowledge, and I would be the first to do so, that complex areas are involved, and that the minister has the responsibility to have discussion not only with indigenous people and their representatives who are directly implicated and concerned but also with other stakeholders in the area—say, professional fishermen and others of that sort. However, he also really has a duty as the minister to consult with the states.I think we are probably acting prematurely if we adopt the resolution that is before the chamber. I think that is the reasonable way to go about it—the way that the minister has indicated to the committee previously. We will all be very interested in the outcome.21:44:005177Brown, Sen BobSenator BROWNQD4TASAG00—Using commonsense, one would have thought, and I am sure most Australians would think, that the Croker Island decision, which gives recognition to native title over the seas, includes the fisheries which the people of that region have used forever. That would mean that, if some other commercial operation moved in, they would be able to ward that off. But the act as it stands says that the giving of a licence to exploit those fisheries is valid provided the indigenous people—and there is only one provision—have been given an opportunity to comment. That is all. So you go and ask them to comment on the giving of this licence which exploits their fisheries to their loss and which does not recognise that those fisheries are theirs for commercial exploitation as well as for their indigenous fishing. You take that away and substitute it with a right to comment on what happens in the future.Has it been worth their getting recognition of their claim? They are left with a right to comment. That is what these amendments are trying to correct—to at least give them the right to be recognised as having a native title interest which extends to a potential commercial interest in so far as those fisheries are concerned. That is what happens in Canada, that is what happens in New Zealand, but that is what patently does not happen here. This reduces the indigenous people to commentators on the loss of their own resources.21:47:005177Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I spoke at some little length previously about the procedural rights that will attach to native title both in the intertidal zone and offshore. We believe those rights are appropriate, and our belief is certainly reinforced by the actual content of the native title decision made by Justice Olney. These are very limited rights. They are rights to hunt and fish and access for traditional purposes—in other words, non-commercial purposes. It specifically said `non-commercial purposes'.We believe in those circumstances the provisions set out both in the current Native Title Act and the Native Title Amendment Bill 1997 [No. 2] are appropriate. You must set in place and the relevant government that proposes to issue a permit, lease or licence to do something offshore must grant to any native title holders corresponding rights. That was the scheme set out and approved by the Senate in 1993. We believe it remains appropriate. Nothing in the Croker Island decision changes our view about what is the appropriate set of procedural rights. Indeed, we have gone beyond that in respect of procedural rights in relation to the regulation or management of offshore waters and living aquatic resources.We specifically said that the native title holders, claimants and relevant representative bodies must be notified and must be given an opportunity to comment on such grants—those that are not found in the current Native Title Act and not found at common law. We have specifically provided a set of procedural rights essentially equating to freehold rights in the intertidal zone. We believe, contrary to what is being said, that we have quite specifically set out an adequate, appropriate, fair, reasonable and equitable set of procedural rights for activities proposed offshore that may have some impact on native title.21:49:005178Brown, Sen BobSenator BROWNQD4TASAG00—That is not contrary to what I said; that corroborates it. The indigenous people do not have commercial rights, and they have the right to comment when commercial fishers move in on their traditional fishing grounds. I hate this process; I hate this outcome. I hate this process of erosion of the rights of indigenous people, and I hate most of all the disempowering of indigenous people of this country through this deliberated process. There are no accidents occurring here. This is with intent by the government and Senator Harradine. It is a disempowerment of the indigenous people. If ever there was a case in point, here it is. It is the interests of the commercial operators that are being looked after. As I said earlier in the piece, it is a case of determinedly bringing in the dictum that the first shall be last and the last shall be first. The first Australians are being put very definitely last here.An incident having occurred in the gallery—10000CHAIRMANThe CHAIRMAN—Order! Applause from either the floor of the chamber or the gallery is disorderly. I would ask people to remember that and maintain order, which has been very well maintained until now.21:50:005178Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—I would note that the advances in common law native title in the last six years have been quite extraordinary and very significant for Aboriginal people, with the Mabo decision itself in 1992 and then the Wik decision doubling the area of Australia over which native title may be found in 1996, and now in 1998 expanded yet again to include offshore. I think we should all reflect upon that. These are quite significant advances in a remarkable six-year period.We have had to put in place legislatively the appropriate procedural rights that should attach to this growing area of Australia that is potentially subject to findings of native title. We are responding adequately in our view. I have indicated both privately and publicly to Senator Harradine that, while we believe we have adequately provided for a set of procedural rights attaching to native title offshore, the government will very willingly discuss with the parties, as this act beds down and as the common law in relation to native title offshore develops, the adequacy and appropriateness of the procedural rights with all parties affected, including the fishing and aquaculture industries, the relevant governments that are involved and the indigenous people involved to ensure that we maintain adequate procedures. I give that undertaking, and I will ensure that that happens. But the government is certainly not convinced that there need be any change to this bill.10000CHAIRMANThe CHAIRMAN—The question is that the Australian Greens amendment AH2 be agreed to. Question put.21:56:00The committee divided. (The Chairman—Senator S. M. West)31Allison, L. Bartlett, A. J. J.Bishop, M. Bolkus, N.Bourne, V. Brown, B.Carr, K. Collins, J. M. A.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. Mackay, S.Margetts, D. 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.33Boswell, R. L. D. Brownhill, D. G. C.Calvert, P. H. *Campbell, I. G.Colston, M. A. Coonan, H.Crane, W. Eggleston, A.Ellison, C. Ferguson, A. B.Ferris, J. Gibson, B. F.Harradine, B. Herron, J.Hill, R. M. Knowles, S. C.Lightfoot, P. R. Macdonald, I.Macdonald, S. McGauran, J. J. J.Minchin, N. H. Newman, J. M.O'Chee, W. G. Parer, W. R.Patterson, K. C. L. Payne, M. A.Reid, M. E. Synon, K. M.Tambling, G. E. J. Tierney, J.Troeth, J. Vanstone, A. E.Watson, J. O. W.Conroy, S. Kemp, R.Campbell, G. Alston, R. K. R.Lundy, K. Abetz, E.McKiernan, J. P. MacGibbon, D. J.Murphy, S. M. Heffernan, W.Stott Despoja, N. Chapman, H. G. P.* denotes tellerQuestion so resolved in the negative.10000CHAIRMANThe CHAIRMAN—We will now move to Greens amendment AH3.Amendment (by Senator Brown) negatived:(AH3) Amendment H22, after "forms" (second occurring), insert ", other than water below the high water mark and living aquatic resources in those waters,".10000CHAIRMANThe CHAIRMAN—The question now is that committee agree to the amendments made by the House to the bill. Question put.22:05:00The 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.Colston, M. A. Coonan, H.Eggleston, A. Ellison, C.Ferguson, A. B. Ferris, J.Gibson, B. F. Harradine, B.Herron, J. Hill, R. M.Knowles, S. C. Lightfoot, P. R.Macdonald, I. Macdonald, S.McGauran, J. J. J. Minchin, N. H.Newman, J. M. Parer, W. R.Patterson, K. C. L. Payne, M. A.Reid, M. E. Synon, K. M.Tambling, G. E. J. Tierney, J.Troeth, J. Vanstone, A. E.Watson, J. O. W.31Allison, L. Bartlett, A. J. J.Bishop, M. Bolkus, N.Bourne, V. Brown, B.Carr, K. Collins, J. M. A.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. Mackay, S.Margetts, D. 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.Chapman, H. G. P. Campbell, G.Crane, W. Lundy, K.Heffernan, W. Murphy, S. M.Kemp, R. Conroy, S.MacGibbon, D. J. McKiernan, J. P.O'Chee, W. G. Stott Despoja, N.* denotes tellerQuestion so resolved in the affirmative.Resolution reported.5179Motion (by Senator Minchin) proposed:That the following report from the committee be adopted: The committee has resolved not to insist on the amendments made by the Senate to which the House of Representatives had disagreed and has agreed to the amendments made by the House.22:08:005179Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I have circulated an amendment standing in my name and that of Senator Woodley, Senator Brown and Senator Margetts. I move:At the end of the motion, add "but the Senate:(a) expresses its concern that indigenous people were not consulted in the recent negotiations on the bill and notes from the statement issued by the National Indigenous Working Group on 7 July 1998 that indigenous people do not consent to the bill in its current form and have not endorsed the bill in any previous form; and(b) notes the inadequacy of the bill to deal with the implications of the Federal Court's decision in the Croker Island case.I wish to read into the Hansard the first two pages of the National Indigenous Working Group's statement, and my colleagues from the Democrats and the Greens will continue with the rest of that statement. This is a statement issued by the National Indigenous Working Group on Native Title on behalf of the Aboriginal and Torres Strait Islander peoples of Australia:The National Indigenous Working Group considers that the commentary and judgments expressed in this statement are a true and accurate reflection of the opinions of the Aboriginal and Torres Strait Islander Peoples as can be expressed at the national level.The National Indigenous Working Group affirms that the Aboriginal and Torres Strait Islander Commission is an active participant in the Working Group.We, the members of the National Indigenous Working Group, reject entirely the Native Title Amendment Bill as currently presented before the Australian Parliament.We confirm that we have not been consulted in relation to the contents of the current Bill, particularly in regard to the agreement negotiated between the Prime Minister and Senator Harradine, and that we have not given consent to the Bill in any form which might be construed as sanction to its passage into Australian law.We have endeavoured to contribute during the past two years to the public deliberations of Native Title entitlements in Australian law.Our participation has not been given the legitimacy by the Australian Government that we expected, and we remain disadvantaged and aggrieved by the failure of the Australian Government to properly integrate our expert counsel into the lawmaking procedures of government.We are of the opinion that the Bill will amend the Native Title Act 1993 to the effect that the Native Title Act can no longer be regarded as a fair law or a law which is of benefit to the Aboriginal and Torres Strait Islander Peoples.We remind the Australian Government and the Australian Peoples that the Native Title Act is not the mechanism which creates our ownership of land, waters and environment.Our ownership derives from our ancient title which precedes colonisation of this continent and our ownership must continue, in Australian law, to be recognised in accordance with our indigenous affiliation with the land, waters and environment.Our relationship with the land, waters and environment is a complex arrangement of spiritual, social, political and economic associations with the land which cannot be replicated, substituted, replaced or compensated. We regard fair and equal treatment of our indigenous land rights, or Native Title, in comparison to the land title of other Australians, to be determined by the level of respect and regard for the titles and not by the assimilation of titles.It is therefore a fundamental flaw of the Australian Government to consider that fairness or equality in the Native Title Act has been achieved by limiting the rights of Aboriginal and Torres Strait Islander Peoples, for example to the rights of pastoral lessees.On this basis we reject as repugnant the proposal that the Native Title rights of Aboriginal and Torres Strait Islander people must now be reduced where pastoral leases occur.We also consider the requirement that we must prove contemporary physical association with our land to be unacceptable.Although the Australian Government has sought means to "soften" the impact of this requirement, it nevertheless limits our Common Law rights, and it deliberately lessens our access to lands, waters and environment.The invidious intent of the "physical association" test is to validate the past "locked gate" policies of the pastoralists, to exploit the 100-years imprisonment of our people under the "reserves" system, and to despoil the rights of the "Stolen Generation".We are absolutely of the view that the Native Title Act, once it is amended, will no longer reflect the negotiated outcomes of 1993, when Aboriginal and Torres Strait Islander people did participate in the construction of the statute, and ultimately agreed to the implementation of that law.That is the first two pages of the statement. Senator Margetts or Senator Woodley may wish to read out the next two pages.22:13:005180Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—In speaking in support of the amendment to the motion I will use the words of the National Indigenous Working Group because this is the only chance they have had to be involved in this debate:The agreement was founded upon basic principles which are no longer maintained. These principles include:• the legislation would not preempt or alter Common Law definition of Native Title;• the Commonwealth retained responsibility for Native Title procedures and instruments; and• the Racial Discrimination Act would apply, except in the situation of validation of grants of interests over Native Title from 1975 to 1994.We remain concerned that the Australian Government has ignored its commitments to implement a "social justice package" for the Aboriginal and Torres Strait Islander peoples as a compensatory measure.We are also concerned that existing and relevant measures for the benefit of Aboriginal and Torres Strait Islander peoples such as ATSIC, heritage protection laws, the Indigenous Land Corporation, the Aboriginal and Torres Strait Islander Social Justice Commissioner and the Council for Aboriginal Reconciliation are being seriously eroded and impaired.These measures have been developed by the Australian Government in a non partisan approach to mitigating the effects of past colonisation and racial exploitation of the Aboriginal and Torres Strait Islander peoples.We are offended by the extremely partisan approach of the current Australian Government which has caused the Aboriginal and Torres Strait Islander Peoples to be political victims, subjected to racial vilification by some Australian institutions and citizens.This vilification has, in the opinion of the Working Group, been incited by the Australian Government's bent to denigrate Native title rights, and has not been adequately addressed by the Australian Government under the goal of eradicating racial prejudice.My colleague Senator Brown will continue.22:15:005181Brown, Sen BobSenator BROWNQD4TASAG00—The National Indigenous Working Group's historic statement of rejection continues:We remind the Australian Government of the international standards on human rights which it has failed to observe in the making of this new Native Title law.The Australian Government signed in 1979 the "Lusaka Declaration of the Commonwealth on Racism and Racial Discrimination".Under the terms of this declaration the Australian Government accepted an international responsibility of governments to work together to eradicate racial discrimination.The statement, in part, reads . . . .We attach particular importance to ensuring that children shall be protected from practices which may foster racism or racial prejudice. Children have the right to be brought up and educated in a spirit of tolerance and understanding so as to be able to contribute to the building of future societies based on justice and friendship.We believe those groups who may be especially disadvantaged because of residual racist attitudes are entitled to the fullest protection of the law. We recognise the history of the Commonwealth and its diversity require that special attention should be paid to the problems of indigenous minorities . . . We agree that special measures may in particular circumstances be required to advance the development of disadvantaged groups in society. We recognise that the effects of colonialism or racism in the past may make desirable special provisions for the social and economic enhancement of indigenous populations.Inspired by the principles of freedom and equality which characterise our associations, we accept the solemn duty of working together to eliminate racism and racial prejudice. This duty involves the acceptance of the principle that positive measures may be required to advance the elimination of racism, including assistance to those struggling to rid themselves and their environment of the practice.Being aware that legislation alone cannot eliminate racism and racial prejudice, we endorse the need to initiate public information and education policies designed to promote understanding, tolerance, respect and friendship among peoples and racial groups.We are particularly conscious of the importance of the contribution the media can make to human rights and the eradication of racism and racial prejudice by helping to eliminate ignorance and misunderstanding between people and by drawing attention to the evils which afflict humanity. We affirm the importance of truthful presentation of facts in order to ensure that the public are fully informed of the dangers presented by racism and racial prejudice.22:18:005181Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—The voice of the indigenous people continues:The Working Group is not intimidated from speaking of racial discrimination in the Native Title legislation.We are guided by the United Nations definition of "racial discrimination" as it is defined in the International Convention on the Elimination of All Forms of Racial Discrimination.The Australian Government has ratified this Convention by enactment of the Racial Discrimination Act 1975. This legislation is fundamental to the proper treatment of Native Title interests by all Australian governments.We consider that the Australian Government should recall its intention to meet international standards on human rights, and must renew its commitment to respect these standards in domestic law and other dealings. Article 1.1 of the Convention describes "racial discrimination" as meaning:any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.Under the terms of the ratified Convention the Australian Government "undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions" [Article 2.1(b)] and "to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination". [Article 4]The National Indigenous Working Group is disappointed that the Australian Government has relegated the position of the Working Group to one of opposition to the Government and, in this situation, the Australian Government has not endeavoured to address the concerns of the Aboriginal and Torres Strait Islander Peoples regarding racial discrimination.The National Indigenous Working Group is extremely disappointed that the Australian Government has failed to confront the issues of discrimination in the Native Title laws and implicitly provoked the Aboriginal and Torres Strait Islander Peoples to pursue concerns through costly and time-consuming litigation, rather than through negotiation.We particularly condemn the Prime Minister, the Hon. John Howard, for his personal failure to display leadership to the parliament, to vested interests, to Australian citizens, and to the Aboriginal and Torres Strait Islander Peoples for a just and reconciled nation by the Year 2001.22:21:005182Lees, Sen MegSenator LEES8U4SAAD00—This is the final part of the statement from the Indigenous Working Group:We consider that the Prime Minister holds an obligation through his high office to personally advocate the principles of freedom and equality for the Aboriginal and Torres Strait Islander Peoples, and to personally campaign for the elimination of ignorance and misunderstanding between peoples.Finally the National Indigenous Working Group notes that much attention has been given to Senator Harradine and Senator Colston to defeat the Native Title Amendment Bill.While we continue to urge these individuals to respect our position on the legislation and oppose the Bill, we do not intend to amplify their roles in relation to all parliamentarians. The National Indigenous Working Group does thank Senator Harradine for his staunch support of the Native Title Act 1993, recognising his role in strengthening that legislation, and on his principled stands during the previous Senate considerations of the Native Title Amendment Bill.However we remind Senator Harradine and all parliamentarians that Australian history is in the making, and that future generations will be examining today's actions in the context of justice towards Aboriginal and Torres Strait Islander Peoples.History will not record the technical details of draft legislation, but will record the outcomes of the legislation and whether Australia faced up to its long term neglect or turned back the clock on reconciliation.We insist that our children and their descendants enjoy their lawful rights as revealed in the 1992 High Court decision on the "Mabo" case. We also insist that our children be safeguarded from the same racism, racial prejudice, and racial vilification which we are experiencing today.We are determined that the future generations of Australian society are raised and educated in a spirit of tolerance and understanding which will ensure that the measures of justice important to the reconciliation between our peoples can be appreciated and embraced.We call upon all parliamentarians to give serious thought to the responsibility of the Australian Government to eradicate racial discrimination in this country.The National Indigenous Working Group on Native Title absolutely opposes the Native Title Amendment Bill, calls upon all parliamentarians to cast their vote against this legislation, and invites the Australian Government to open up immediate negotiations with the Aboriginal and Torres Strait Islander Peoples for coexistence between the Indigenous Peoples and all Australians.22:23:005182Minchin, Sen NickSenator MINCHINJX4SALPSpecial Minister of State;Minister Assisting the Prime Minister10—The government, not surprisingly, I guess, opposes this amendment to the motion. I must say I have enjoyed my dealings with the National Indigenous Working Group in the almost 2½ years I have been dealing with native title. They may not have enjoyed dealing with me, but I have certainly appreciated their robust putting forward of their case.It must be remembered that, essentially, the National Indigenous Working Group, to which this amendment refers and the statement of which has been read into the Hansard, is essentially made up of the professional officers of a number of Aboriginal land councils around Australia, the membership of which does seem to change from time to time. They do not actually have any right to speak on behalf of all indigenous people, as this amendment proclaims. We are asked to note that the Indigenous Working Group says that `indigenous people do not consent to the bill'. With due respect to the National Indigenous Working Group and its operation, the fact is that it has no right to claim that it speaks for all indigenous people in Australia. It is quite an extraordinary claim for it to make. It is not elected by the indigenous people. It does not speak on behalf of all indigenous people. To simply make the claim which you want to make with this amendment that all indigenous people do not consent to this bill is quite extraordinary.There is also the extraordinary proposition in this that somehow we are meant to assume that legislation affecting Aboriginal people can pass this parliament only if it is consented to by the Indigenous Working Group, one presumes. In other words, they are to have a veto on any legislation passing this parliament—a proposition which I would have thought would be quite unacceptable to the opposition. To suggest that any group should have any veto over legislation passed by the duly elected parliament of this country is quite obnoxious.The statement has been made that they were not consulted. As I have said before, time and time again, the government and the Prime Minister (Mr Howard) himself went through an enormous period of consultation following the Wik decision. He was criticised for the time he was taking to reach a conclusion as to the appropriate legislative response to the Wik decision.But what we were dealing with just recently was a situation where Senator Harradine approached the government seeking discussions to resolve the dispute between the House of Representatives and the Senate. This was a parliamentary dispute between the Senate and the House of Representatives which the government, on behalf of the House of Representatives, and Senator Harradine had to discuss in some detail. That was what we sought to resolve.Of course, Senator Harradine, as he will no doubt make clear, sought to put propositions to the government quite forcefully which were clearly on behalf of indigenous Australians. He sought to have the government accommodate propositions within the legislation which responded to the interests of Aboriginal Australians. To the extent that we have amended the legislation to accommodate Senator Harradine, those accommodations involve responding to the interests of Aboriginal Australians, as represented by Senator Harradine.I understand the grievance that is felt apparently because this phase did not involve formal consultation, but it could not, as Senator Harradine has made clear. These were very difficult negotiations with Senator Harradine on a number of matters. As I say, Senator Harradine was putting propositions all of which involved representations on behalf of Aboriginal people, and all the amendments that we put forward involved accommodating those particular interests.I have said repeatedly that it is a complete furphy which the government does not accept that somehow the inadequacy of the bill is exposed by the decision in the Croker case. Quite the contrary. The bill more than adequately deals with the implications of that case. Clearly, the bill has been prepared with considerable foresight in that it accommodates that decision more than adequately. The government completely opposes this amendment.Could I just suggest to the Senate that leave be granted for the proposal of the adjournment of the Senate to be deferred until the conclusion of this item of business?Leave not granted.6H4HARRADINESenator Harradine—Could I have the leave of the Senate to conclude my remarks, which should be only 10 minutes, before the adjournment is proposed?10000PRESIDENTThe PRESIDENT—Is leave granted for Senator Harradine to do that and for the adjournment to be deferred for 10 minutes for that purpose?Leave not granted.10000PRESIDENTThe PRESIDENT—Senator Harradine, there is about one minute this evening before we adjourn.6H4HARRADINESenator Harradine—Was leave not granted?10000PRESIDENTThe PRESIDENT—Leave was not granted.6H4HARRADINESenator Harradine—By whom? I have to respond, or are you gagging me?10000PRESIDENTThe PRESIDENT—Order! Leave has not been granted for you to speak beyond 10.30 p.m.Adjournment518410000PRESIDENTThe PRESIDENT—Order! It being nearly 10.30 p.m., pursuant to standing orders, I propose the question:That the Senate do now adjourn.518422:30:005184Bolkus, Sen NickSenator BOLKUSXE4SAALP00—I rise to speak on the adjournment debate. The matter I wish to raise is one that relates to quite a number of voters—Australian citizens—who have taken the time, effort and opportunity to contact my office in respect of the Native Title Amendment Bill 1997 [No. 2] before the chamber. I feel it is appropriate to note the thoughts of one of the many voters who place significance in what happens here and in what is said here.Disgusted with the response of the government in general and the Prime Minister (Mr Howard) in particular to the National Sorry Day, one such person wrote to the Prime Minister, to the Leader of the Opposition (Mr Beazley) and to the Minister for Aboriginal and Torres Strait Islander Affairs (Senator Herron). Her name is Megan Evans—she does not mind her name being used—and this is her story. This is what she wrote to the ministers:I haven't signed the Sorry Book. It seemed to me to be too small a thing to do to express a very big feeling.My husband was one of the stolen children.He was a year younger than me.I'm sorry.I'm sorry that when I was a child of seven, wearing party dresses and carrying my suitcase to school, he was regularly being beaten with a strop strap at a Children's Home and running away by hanging underneath a train all the way from Sale in Gippsland to Richmond station.I'm sorry that his mother died in 1988, the year of the bicentennial, at the age of 46 and I am lucky enough to still have the company of my mother at the age of 75.I'm sorry that I am about to embark on my 8th year of tertiary education and he had to study for his HSC from books begged for in jail.I'm sorry that he was 9 years old when his mother was eligible to vote, having some small say in a future on his behalf, yet my parents took that right for granted for all of their life and mine.Most of all I am sorry that I couldn't ever know his pain or do anything that would take it away. He used to say that he just wished someone from the government would apologise for the mess they had made of his life.I am sorry that he died a lonely and painful death with a noose tied around his neck in 1993, the International Year of the Worlds Indigenous Peoples.I am sorry that the legislators of today have listened little and understood even less. The stories of the stolen generations were an indictment before the world of the attitudes and behaviour of mainstream Australia and its governments over many years. The bill that we have been discussing in the last two days in its substance, and in the poisonous process that has brought it back to this place, explains why this government can never say sorry. They just don't get it.518422:33:005184Coonan, Sen HelenSenator COONAN2M6NSWLP10—The current debate on migration has focused on the numbers of migrants arriving, rather than on the undoubted contribution they have made to Australian society as a whole. Australia is a melting pot of people whose ancestors have come from just about every country in the world. What has been overlooked in the present debate about multiculturalism is the great capacity of newcomers to adapt their own distinctive culture to their new environment. It is this capacity that has helped develop Australia into the diverse and successful nation it is.To use a term coined by American author and commentator, Eric Liu, after a few gen erations the descendants of migrants become part of omniculturalism—not multiculturalism or monoculturalism but omniculturalism. In the process of adaptation to a different culture, many of the values and principles held dear by the original migrants—values and principles brought with them from their country of origin—evolve to suit the environment in which they are in. Thus the move to omniculturalism is more about finding new values and principles than it is about losing old ones.Unfortunately, the adaptation process is often made harder than it might otherwise be through the cynical use of identity politics. There is no better example of this than the Asian migration debate, a debate which Ms Pauline Hanson and her One Nation Party are using to peddle misinformation on which they are basing their policies. Ms Hanson and her closest supporters are utilising the traditional methods of all bigots by using exaggeration, manipulation and bodgie figures to exploit the fears and insecurities of others about Australia's intake of Asian migrants.Let us look at some of the facts. In 1996-97, the intake from Asian countries was 32,084 out of a total of 85,752. This represents 37 per cent, not the 70 per cent claimed by One Nation. In the 1996 census, 2.6 per cent of the Australian population was born in South-East Asia, 1.4 per cent in North-East Asia and 0.8 per cent in southern Asia. Therefore, the total percentage of the Australian population that was born in Asia at the time of the census was 4.8 per cent. The ABS predicts that, by 2040, seven per cent of Australians will have been born in Asia.Ms Hanson and her immigration spokesperson, Ms Robin Spencer, claim the official figures are wrong and are lies being perpetrated by the government. But the figures that One Nation have used have been disputed by the demographer who collated them, Dr Charles Price, who has stated, `They've never asked me what I think. They've just taken my writings and put their own interpretations.' What credibility can One Nation have, particularly when Ms Hanson fails to take into account the fact that these are not government figures. They were official ABS figures to which the government has no input and where the information is objectively gathered. The Sydney Morning Herald last Saturday, 4 July, summed it up aptly when it said:. . . in the case of One Nation, an unwillingness to acknowledge the facts and to take them into account when framing policies when they do not fit the prejudices of Ms Hanson seems to be the defining metaphor of the party.Another problem with the current debate is that, when talking of Asian migration, all nations in the region tend to be lumped together as one huge mass of people who are all alike. Of course, nothing could be further from the truth. In broad terms, Asian migration includes arrivals from countries as diverse as India, Laos, Indonesia and Cambodia. Nevertheless, in the migration debate, all such people are identified simply as Asian.The ethnic identities of newcomers from these countries are removed by applying a commonality to them all. Eric Liu, in his recently released book entitled The Accidental Asian: Notes of a Native Speaker looks at identity politics and makes a number of pertinent observations. He makes the point that:Unlike blacks, Asians do not have a cultural idiom that arose from centuries of thinking of themselves as a race; unlike Jews, Asians haven't got a unifying spiritual and historical legacy; unlike Latinos, another recently invented community, Asians continued their apartness.Apart from indigenous Australians, we in Australia are all migrants or descendants of migrants. As such, descendants of migrants are to be found everywhere, and in most cases it is impossible to ascertain from which country their ancestors came. We are Australian in every sense of the word. This is because, in general, newcomers realise that to try to set up in Australia an exact replica of a community they left is largely unworkable. It also defeats the very purpose of their migration—to take advantage of new opportunities as part of starting a new life.Opponents point to suburbs where certain races are said to dominate as proof of their assertion that migration leads to ethnic ghettos. It is true that many newly arrived migrants tend to gravitate towards others from their old country. Obviously new arrivals must find their way and often it is others with a similar ethnic, social or religious background who can provide them with the road signs they need to negotiate their new homeland.Opponents of migration also point out that most migrants choose to live in urban areas rather than help to develop less populated areas. If this is so, the fault lies not with migrants but with policies over generations that have failed to provide sufficient opportunities and incentives to encourage migrants to settle in areas outside the better known urban belts. Infrastructure and jobs are necessary to act as a magnet to draw migrants to where they are needed most.Migrants do, of course, move out of cities and help develop rural and regional areas. A fine example of this are the German settlers in the Barossa Valley who helped develop a wine industry that is now internationally recognised. So, too, in Griffith, New South Wales, where Italian migrants established market gardens which continue to serve people throughout the nation. Many of the families are now third or fourth generation and rightly call themselves Australians—not Italian-Australians, just Australians.More frequently, successive generations do not want to cling to an ethnic past that was never really their own in the first place. It might have been their grandparents', but it is not theirs. In his book, Mr Liu looks at the United States experience and concludes that the so-called Asian-American identity is both contrived and unnecessary.Mr Liu's observations may be as relevant to Australia as they are to the United States. In the debate over Asian migration it is often overlooked that many shirk the industry that has sprung up around newcomers promoting an Asian identity and instead seek immediately to adapt. In describing this very situation for a person of Asian descent who strives to assimilate, Mr Liu has said in respect of himself that he had been described by other Asians as a banana—yellow on the outside, white on the inside.Marriages to people of different racial or ethnic backgrounds often result from the adaptation process. In the United States, for instance, 34 per cent of Asians are married to non-Asians, giving rise to hyphenated bloodlines that see third or fourth generation people having an ancestry of ethnic combinations such as Chinese, Scottish, Irish and Jew. The combinations are almost endless and show once again that the concept of omniculturalism is a reality, not just a theory.There are dangers in the current situation in Australia, and as a nation we must be careful to temper this current debate. With inflammatory and totally inaccurate statements being made almost on a daily basis by One Nation, we could, unless we are careful, force Asian migrants into what Mr Liu describes as the `enclave mentality'.Omniculturalism will eventually see the breakdown of race as an issue. Mr Liu argues that race is fundamentally an invention. He wrote:And just as something can be invented, so it can be dismantled. If you believe in the identity, I can respect that. I'm just not sure it will last another generation.While it might be drawing a long bow to say that race is an invention, it is fair to argue that the so-called Asian invasion of our cities is an invention and a myth. The Minister for Immigration and Multicultural Affairs, Mr Ruddock, has refuted the myths and given the correct figures as opposed to the bodgie ones being touted by One Nation. One Nation claims that the population is doubling when in fact without immigration it would simply be declining. But the myths continue to be capitalised upon by opponents to immigration who fail to see how skilled migrants can help to advance properly thought out national objectives.Australia is a great nation because of its racial, political and religious diversity, which interacts well and thrives together. Omniculturalism reaches across the racial divide and provides unity in diversity. It is the very glue that makes Australia a vital and interesting place.518622:42:005186Crossin, Sen TrishSenator CROSSIN7Y6NTALP00—I rise tonight to respond to Senator Tambling's statement during the adjournment debate last night and his attempt to defend the record of the Northern Territory government. One might be led to believe that his response sounds more like `Travels with my Aunt'. It fails to provide this parliament with a true picture of what is happening in the Northern Territory.My role is to defend my constituents, who for too long have felt that, since the resignation of Bob Collins, their concerns have not been heard here in Canberra. Senator Tambling thinks that it is a bad habit of the Labor Party to take a different viewpoint. But that is our role. My role here is to ensure that the people in my electorate are well represented, not the Northern Territory government.I am here to represent all sectors of the Northern Territory, not just the Northern Territory government and its interests. My role is to ensure that the voice of ordinary Territorians is heard—not just a few, not just the mining companies or the pastoralists, not just Aboriginals or big business, but all sectors.Senator Tambling says that the Labor Party believes that we have an exclusive right to Aboriginal people, policy and development, and he refutes this. But let us look at some of the recent actions by the Country-Liberal Party in the Northern Territory. There has been no decision by that party to put One Nation last in the next federal election. The second Senate candidate for the Country-Liberal Party, an Aboriginal woman, has said on radio that, if they give their second preferences to One Nation, she may well reconsider her position on the ticket and whether or not she will stand.The Chief Minister kissed and made up with Galarrwuy Yunupingu yesterday, but what sorts of principles and policies drive a person in a high, prominent public office such as the leader of the government to refer to a senior, well respected leader of Aboriginal people as a `whingeing, carping black' in the first place, simply because that person did not agree with the actions of the Northern Territory government?Senator Tambling said last night in relation to yesterday's Federal Court decision on the native title sea rights—and I quote from Hansard, page 4263: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.Yes, Senator Tambling, it is a pity. It is a pity that your government and the Northern Territory government did not consult with indigenous Territorians before entering into the debate in the chamber this week, and certainly these discussions should have been reviewed before the native title debate began. I am pleased to see that you have recognised this, but it is too late. The polls, contrary to what you say, show that Aboriginal people support the Labor Party. They know that we are not a party that will desert them, and we are not a party that will insult them but will look after them.Senator Tambling also referred to the 13 years of Labor in government and tried to claim, without any relevant evidence, that there were no measurable achievements. Let us examine the figures and the facts. I should highlight that my colleague made no mention last night of the achievements by the Howard government with respect to the Northern Territory. Regional road allocation was cut by the federal government. Labor had committed $15 million to the Territory and had paid $5 million, but the coalition cut the program completely. This affects tourism, transport and outback properties in the Northern Territory. Regional universities have been cut by 4,700 places nationally and Abstudy has been cut by $38.7 million. This has had a major impact on Batchelor College, a tertiary institution that provides training for Aboriginal people, and the director of the college, whom I personally know, has spent many, many months negotiating a better deal for the college in the interests of his students.The Northern Territory University has suffered cuts along with the rest of the universities of up to $624 million nationwide to their operating grants over four years. This has resulted in the loss of the English department from the Faculty of Arts and some courses and places from the Faculty of Technology. This government does not appreciate the role and the efforts of the Northern Territory University and how complex and demanding it is on a regional university to be what everybody wants it to be in an isolated place such as Darwin. This university could be a bonus.Small and medium business development has been retarded. There has been a $4 billion assault on the industry assistance program and a $26 million cut to export assistance. Aboriginal communities were in their final stages of developing regional plans, but they were never completed due to funding cuts. Legal aid was cut by $120 million over three years. There is still no Medicare office in Katherine, and I have already mentioned many times since I entered this chamber the impact of the Cox Peninsula transmitter station being closed just after Labor had spent $13 million upgrading it.Senator Tambling mentioned the record of achievement in the Northern Territory and made reference to the increase in population, which I hope has not been one that has been single-handedly owed to the Northern Territory government. The number of people employed in the Northern Territory has increased, but this is largely due to the programs and policies of the Labor government such as the decision to relocate the defence forces to Robertson Barracks. The average weekly earnings have increased in the Northern Territory and, again, this is due to the policies of the Labor government and the efforts of the unions through the national wage cases.If you look closely at Hansard, I do not say that the Northern Territory has not developed. This is not true. The policies and attitude of the Northern Territory government have frustrated and retarded the economic development of the Northern Territory. Senator Tambling claims that this is wrong, but he has not proved anything to the contrary. In a week of national significance and a week of debate on the two most important issues affecting the Northern Territory in the last six months—Wik and Telstra—where is the voice of the Northern Territory government? Where is the voice of the CLP or Senator Tambling on these issues?I do not oppose development, nor does the Labor Party. It is welcomed, but under the right conditions with all parties being consulted, their concerns listened to and all parties having a chance to negotiate an outcome that is satisfactory to everyone concerned. My role is to defend my constituents, to represent them and to make their voice heard in this chamber, particularly in times of national significance.518822:49:005188Macdonald, Sen IanSenator IAN MACDONALDYW4QLDLP10—What an extraordinary contribution by Senator Crossin. I must say that I did not have the pleasure of hearing Senator Tambling last night, but I know that what he said would have been accurate because I know that he speaks for the people of the Northern Territory. After all, at least he has been elected by the people of the Northern Territory.The thing that really amused me about Senator Crossin's remarks was that she said that she represents all the people in the Northern Territory and they are totally opposed to the things that their Territory government is doing. That surprises me because, as I recall, the Country Liberal Party in the Northern Territory has been in government for the 20 years that the Territory has had self-government. If it is such a bad government, why don't the electors of the Northern Territory get rid of it? Each election, they re-elect it with increasing majorities. Of course, in the federal parliament we know that the two elected federal representatives from the Northern Territory are members of the coalition.It has been a long, hard day and I do not want to keep the Senate too long. We have had to listen to a lot of pious hypocrisy from some of those opposing the government's position on the native title legislation, so we do not want to be held up with long adjournment speeches, but I was moved to speak because when I was with the Prime Minister (Mr Howard) in Maryborough last week a supporter of One Nation handed me a docu ment and said, `We don't like your 10-point plan; here's our 10-point plan.' It had nothing to do with native title; it was their 10 points on how the government of Australia should be run. I opened it up when I got back to Parliament House several days later and had a glance at what was in this note. I was struck by the similarities of the policies being advocated by the One Nation Party, the policies being advocated by the Labor Party and the policies being advocated by the Democrats.Something from the Democrats was shoved under my door. It came through the mailbox or something. They are running some sort of campaign, but they listed a few things. That reinforced my view that, strangely enough in this world, the Labor Party, the Democrats and One Nation seem to have a lot of things in common. First of all, they all oppose the GST because they seem to like the current ramshackle wholesale sales tax system that is unfair, that favours the rich and that does nothing for Australia.All three parties also, quite clearly, oppose our native title legislation and the amendments we have put to make that work for indigenous Australians and for all other Australians as well. All of the other parties oppose it. I suspect that One Nation oppose it for different reasons than the Labor Party and the Democrats but, again, it is a meeting of minds in opposition to that.The other thing that struck me was in relation to tariffs. The Labor Party used to be quite sensible about tariffs but now they are taking some populist approach to economic activity, and they are starting to back-pedal on the question of tariffs. In that, they are totally at one with One Nation and the Australian Democrats. That concerns me because I come from North Queensland, an area which is dependant on the sugar industry. A lot of these people—the Labor Party, the Democrats and One Nation—are running around saying, `We should retaliate against Canada. We should ban imports of their pork.' They say that is needed to give Australian industry a fair go. Of course, in doing that, they are inviting retaliation from the Canadians, who purchase some $250 million worth of North Queensland sugar. Those are the sorts of policies that would really cripple the North Queensland and Australian sugar industries. But the Labor Party, the Democrats and One Nation are at one with that.They also seem to be at one in opposing the full privatisation of Telstra. The Labor Party were the greatest privatising government in history—and congratulations to them, even though they did it very dishonestly. They used to go to an election saying, `We won't sell the Commonwealth Bank, we promise, hands on our hearts.' They would come in after the election and immediately do the opposite. With Telstra, even though their leader indicated several years ago that it should be sold, they are now thinking that there is an election issue there and they are going to oppose it.It is the same with the Democrats, although I am not quite sure what their ideas on privatisation are. You see in their policy comments like `You can't sell the family silver,' so they seem to be opposed, and One Nation seems to be opposed. They say, `Don't sell off our public utilities.' The Labor Party, the Democrats and One Nation are the same in that none of them have any substantive arguments against the sale of Telstra. We believe Telstra should be sold because you can get a better telecommunications network for people in the country, you can get some money that will pay off debt run up by the Labor Party, and you can do a lot of good things. You also get governments out of running private commercial businesses which most sensible Australians would think they should be out of.I then noticed that the Labor Party, the Democrats and One Nation, interestingly, are all opposed to the multilateral agreement on investment. I must say that the government is looking very carefully at this, and of course we will not be involved in anything that is bad for Australia, but it is interesting that One Nation supporters and Democrats supporters are at one in this particular area.With immigration and population control, I am not sure what the Labor Party's policy is—in fact, it is very difficult to find out what the Labor Party's policy is on anything—but One Nation and the Democrats seem to have the same policy in relation to zero population growth. I suspect, in fairness, that they probably approach it from different angles, but if you are going to have zero population growth it does really mean one and the same thing.As we get closer to the next election, I think the people of Australia are going to have a very clear choice. If they want a government that is devoted to genuine tax reform, if they want a government that wants to abolish an unfair tax system which favours the rich, if they want a government which will ensure increasing trade—and that of course means jobs, if they want a government that does not want to invite retaliatory trade barriers on our exports, if they want a government with a fair and just immigration policy, if they want a government that will give equity and certainty for all with native title, if they want a government that will provide a world class telecommunications system, if they want a government that will pay off foreign debt from the proceeds of the sale of a commercial enterprise and if they want decent good government, there is only one choice and that is for a return of the Liberal-National Party coalition government.It is interesting that scrutiny shows that, in so many areas, the Labor Party and/or the Democrats and One Nation are the same in policy terms. They are the same on the GST, the same on the sale of Telstra, the same on protection of inefficient industries, the same on trade policy and, it appears, the same on immigration. It will be interesting, as we get into the election and see if the Labor Party has any policies and what they are, to compare how much they, the Democrats and One Nation are at one in a policy sense.519022:58:005190Allison, Sen LynSenator ALLISON1M6VICAD00—I rise tonight to talk about the somewhat urgent problem of recycling and local government. Australian householders have a very good record of recycling and their diligence is increasing despite the common occurrence of lovingly sorted waste going off to landfill. Last week, a beverage industry study of 5,000 households in 98 council areas found that 72 per cent of beverage containers were being recycled—the highest recovery rate yet reported.The Australian Local Government Association estimates that 75 per cent of Australian households recycle. Whether it is transforming their milk cartons into Chinese boxes or separating their soft drink bottles from their aluminium cans, the appetite of Australian households for recycling is remarkable. This enthusiasm persists even in the knowledge that there is a glut in the market for recycled materials and many councils have actually given up their recycling programs because of the very poor returns. I think the enthusiasm for recycling bears out the maxim of thinking globally and acting locally. Faced with all sorts of environmental problems, the solutions of which are largely out of their hands, one of the very few positive actions that people can take is to sort out their own garbage.Stopping uranium mining, global warming or industrial pollution seems out of reach for most people, as fighting these things and fighting against recalcitrant governments involves a lot of money. Recycling, I suspect, salves many a conscience. We all live in an unsustainable society which gives us few options to avoid colluding in environmental destruction. Choices are made for us through policies that make coal-fired electricity a cheaper short-term option for most people than renewable energy, and our hurried lifestyles and nuclear families have enshrined the cult of the disposable. I suppose we are all on the lookout to make a contribution no matter how small.The sad news is that local government is now at breaking point in this struggle of having to bear most of the responsibility for recycling initiatives in this country. In Sydney, for instance, household paper and bottle collection is near collapse. Two months ago we were warned that most Queensland councils would scrap recycling if government subsidies were not introduced. They said that rising transport and low commodity prices were to blame. One private operator in Canberra has informed residents that it will no longer recycle cardboard boxes, and this is at a time when Canberrans are being warned that their current disposal practices will exhaust landfill capacity within five years.According to the ALGA, there is no way that national landfill reduction targets of 50 to 60 per cent are going to be met without quite large ratepayer subsidies. The $100 million per annum needed every year is a sum of money which is going to be required indefinitely. Local government is subsidising the cost of recycling by about $100 million a year, as I said, and this situation is demanding choices that should not have to be made. Does a council, for instance, maintain its recycling program at the expense of its child-care centre? Does another council sacrifice library facilities in order to continue recycling?Local government is currently negotiating a voluntary agreement with state and federal governments and industry—the national packaging covenant. Local government and industry have agreed that we must start to find ways of funding this $100 million gap between the cost of providing recycling and the sale value of recycled materials. It is no longer seen as fair for ratepayers to bear this burden alone.We know that many industries produce products with wasteful packaging that has no value once the product has been opened. I think the cult of the plastic bag particularly goes on in our society unquestioned. Although local government and households are crucial in the recycling loop, the current crisis will remain until federal and state governments and industry take much more initiative than we have seen thus far. State governments have been criticised for invariably taking the easy road—that is, they increase the burden on local governments rather than promote and demand that industry play that role.The era of serious environmental commitment on the part of industry has not yet arrived. Whilst we might see dolphins and the liberal use of the words `green and clean' on supermarket products, they are no guarantee of sustainable practices. The cleaning product you may buy might have a triangle stamped on it indicating that it can be recycled, but the container often has not been made of recycled materials, and the symbol is there as a vague suggestion by the manufacturer that someone somewhere might may be able to recycle it. Greenpeace recently alerted us to the fact that less than one per cent of PVC produced in Australia is being recycled. It is present in many common items, such as food wrappers and soft drink bottles, and it is a major environmental hazard.A local government task force has looked at a number of possibilities. They include: a raw material tax; a retail levy; container deposit legislation, such as that operating successfully over many years in South Australia; a waste disposal landfill levy; industry self-regulation, although this ends up being essentially the status quo; voluntary/legislated industry funds, a broadly based industry levy; a national equalisation fund, and these types of funds are common in the agricultural sector and are used to even out price fluctuations; advance disposal fees, a surcharge on products to pay for later disposal; commodity prices fixed within an agreed floor and ceiling; and supplementary rates and charges, or user pays.The principle of product stewardship is essential to the success of any agreement between industry and the three tiers of government. Increasingly, we see it at work in Europe, but here, it seems, it needs a lot more work. This principle relates to the entire life cycle of a product: from the raw materials through to the design stage of the product, packaging, manufacturers and users—with everyone participating in the arrival of a new product and accepting the responsibility for its environmental impact.Talks between Australian and New Zealand ministers last month also raised the prospect of `take back' provisions. These would require companies to recover, reuse and recycle a certain percentage of their packaging. The Financial Review noted that this would affect companies such as CCL, CUB and Kelloggs.The ALGA has called for federal assistance in recycling totalling $25 million a year for the next four years. Like many sensible environmental measures, this is likely to receive a lukewarm response from the federal government. But reinstituting sales tax exemptions for products made from recycled material, such as paper, would go some way towards changing what is a desperate picture.In talks late last month in Adelaide between industry and federal and state ministers, packaging companies baulked at that idea of paying the estimated $30 million, which represents their share of the cost of recycling, saying that it would eat into their profits. Whilst it is possible to be sympathetic to the arguments of local players that global operators are able to cut costs aggressively, the question must be asked: where does this leave local government? The answer is: it leaves local government bearing most of the financial burden.I think now is the time for the federal government to do as local government suggests—that is, to back its policy stance and to assist in the development of a long-term econ omically sustainable recycling program in Australia. I suggest we cannot go back to putting all of our refuse into the rubbish bin. Fortunately, more than 70 per cent of Australians have already changed their habits—and I think that is a permanent change—and now is the time for federal government to act.23:07:005192Senate adjourned at 11.07 p.m.Documents51925192The following document was tabled by the Clerk:Telecommunications Act—Telecommunications (Customer Service Guarantee) Direction No. 1 of 1997 (Amendment No. 1 of 1998).Answers to Questions on Notice5193The following answers to questions were circulated:5193(Question No. 1192)11925193Brown, Sen BobSenator BrownQD4TASAG00 asked the Minister representing the Prime Minister, upon notice, on 13 May 1998:With reference to the regional forest agreement (RFA) now being prepared for the Central Gippsland area in Victoria:(1) Can a list and copies of all documents or other information provided by the Victorian Government to the forest taskforce in relation to land vested in the Victorian Plantations Corporation (VPC) be provided. (2) Has the Victorian Government advised that land vested in the VPC only has plantations on it and no native forest; if not, can a list be provided of the parcels of land stated to have native forest.(3) Is land vested in the VPC being investigated as part of the RFA for incorporation into the reserve system; if not, why not.(4) What steps have been taken or will be taken to ensure that the Victorian Government does not pre-empt the RFA by issuing licences over VPC land for use as plantations in perpetuity, as provided for under legislation which has just passed through the Victorian Parliament.5193Hill, Sen RobertSenator HillBH4SALPEnvironment10—The Prime Minister has provided the following answer to the honourable senator's question:(1) The Victorian Government has provided to the Forests Taskforce only one document which is a copy of a response from a Victorian minister to a submission from Victorian residents. Victoria's agreement has been obtained to the release of this document, a copy of which will be forwarded to the honourable senator separately by the Department of the Prime Minister and Cabinet and will be available to other senators through the Table Office.(2) No. The Forests Taskforce has not sought a list of parcels of VPC land stated to have native forest.(3) The Commonwealth and Victorian Governments will make a decision on this matter as we move towards the development of the Gippsland RFA. As a precaution Victoria has agreed that any harvesting of native forest vested in the VPC will only occur on the basis that values which may be required for a comprehensive, adequate and representative reserve system are not compromised.(4) Not applicable given answer to (3) above.5193(Question No. 1202)12025193Conroy, Sen StephenSenator Conroy3L6VICALP00 asked the Assistant Treasurer, upon notice, on 29 May 1998:With reference to Senator Conroy's question without notice (Hansard , 6 April 1998 p2055) concerning new anti-dividend streaming provisions and Senator Kemp's response (Hansard , 8 April 1998 p2356) that if some shareholders are more able to use franking benefits than other shareholders, the streaming provisions may apply, depending on the particular facts, notwithstanding that all shareholders are paid franked dividends; and with reference to the example given, that if one shareholder more able to use franking credits receives a large franked dividend, and another, less able to use franking credits, receives a small franked dividend and to compensate, other benefits, the proposed dividend streaming rule could apply:(a) If it is assumed in the example given that the shareholder receives `a small franked dividend' and receives no other benefits by way of compensation or otherwise and it is also assumed that there is no scheme for the disposition shares for the purpose of conferring a tax advantage in relation to franking; will the new anti-dividend streaming provisions under Taxation Laws Amendment Bill (No. 7) 1997 apply.(b) Will these new anti-dividend streaming provisions ever apply to differential dividend amounts paid to different classes of shareholders who also received dividends franked to the same extent, where no shareholders receive other benefits to compensate and where there is no scheme for the disposition of shares for a purpose of conferring a tax advantage in relation to franking.(c) Can examples be provided of how the new anti-dividend streaming provisions might apply in the circumstances described.5193Kemp, Sen RodSenator KempWW4VICLPAssistant Treasurer10—The answer to the honourable senator's question is as follows:The new anti-dividend streaming rule (section 160AQCBA) included in Taxation Laws Amend ment Act (No. 3) 1998, (previously Taxation Laws Amendment Bill (No. 7) 1997), will apply where a company is streaming the payment of dividends to its shareholders. Dividend streaming can occur where shareholders in a company do not receive franked dividends commensurate with their effective interest in the profits of the company. However, an essential element of dividend streaming is that shareholders are distinguished on the basis of their ability to use franking benefits.(a) Section 160AQCBA would not apply in the circumstances outlined in question (a) providing that all shareholders receive franked dividends commensurate with their effective interest in the profits of the company. However, it would not always be necessary that all shareholders with the same effective interest in a company participate in the same dividend to the same extent. For example, 160AQCBA would not apply where shareholders with the same effective interest in a company participated in different dividends at different times but ultimately received the same amount of franked dividends.(b) Similarly, section 160AQCBA would not apply in the circumstances described in question (b) providing all shareholders received franked dividends commensurate with their effective interest in the profits of the company.(c) On the other hand, section 160AQCBA would apply if for example the company paid a fully-franked dividend of, say, $1,000 to one shareholder able to fully use franking credits, and a franked dividend of $1 to another shareholder with the same interest in the company but who is unable to use franking credits, where the differential dividend payment is part of a strategy to avoid wastage of franking credits.5194(Question No. 1203)12035194Brown, Sen BobSenator BrownQD4TASAG00 asked the Minister representing the Prime Minister, upon notice, on 29 May 1998:With reference to the answer to question on notice no. 1123 concerning regional forest agreements (RFAs) in Tasmania and Victoria, which states `The Government is well aware that no government, current or future, can bind the Parliament to appropriate monies whether for the payment of compensation or otherwise', this being the case:(1) What provisions in the RFAs are legally binding.(2) (a) Who is bound; and (b) to do what.(3) What are the effects of any breach of these legal obligations.5194Hill, Sen RobertSenator HillBH4SALPEnvironment10—The Prime Minister has provided the following answer to the honourable senator's question:(1) Provisions in Part 3 of the Tasmanian and Central Highlands Regional Forest Agreements (RFAs) are intended by the Commonwealth and the relevant states, which are Parties to those RFAs, to create legally enforceable rights and obligations.(2) (a) The Parties to each of the RFAs are bound, that is the Commonwealth and the relevant state.(b) The Parties are bound to comply with the provisions in Part 3 of the RFAs. For the Tasmanian RFA, these provisions relate to forest management, compensation, priority species, review of sustainable high quality sawlog levels, review of pricing and allocation policies for commercial Government owned forestry operations, financial assistance and termination of the RFA. For the Central Highlands RFA, these provisions relate to forest management, compensation, industry development funding and termination of the RFA.(3) A breach of the legal obligations may precipitate the seeking of appropriate relief from a court. A breach by the Commonwealth of the financial assistance clauses and/or the compensation clauses in Part 3 of the RFAs constitutes grounds for termination of the RFA by the relevant state.