Kelvin Thomson (Wills, Australian Labor Party, Deputy Manager of Opposition Business in the House) Share this | Hansard source

Labor wants to see native title claims resolved quickly, effectively and fairly. This is manifestly in the interests of all parties. Unfortunately, it has not been happening. The current situation is far from adequate. While 91 claims have been resolved, more than 600 remain unresolved, and claims are taking on average six years to be resolved. I think we on all sides can agree that this is an unsatisfactory situation and in need of improvement. The question is whether the legislation before the House, the Native Title Amendment Bill 2006, will make any contribution towards that. It is my concern that this bill will in fact generate uncertainty for native title claimants and for development, and will undermine the capacity of native title representative bodies to represent Indigenous interests. Those concerns form the basis of the second reading amendment which I now wish to move. I propose that detailed amendments be put forward and considered when the Senate Standing Committee on Legal and Constitutional Affairs inquiry report has been tabled; I understand it is due to be tabled by 23 February. I move:

That all words after “That” be omitted with a view to substituting the following words: “whilst not declining to give the bill a second reading, the House acknowledges;

(1)

that the native title system is currently mired in bureaucracy, and urgently needs a considered and practical approach from the Government;

(a)

to resolve native title claims effectively, expeditiously and fairly; and

(b)

to ensure Indigenous Australians are able to take full advantage of their legal rights;

(2)

the recent findings of Griffith University study which found that ‘federal policy and legislative and budgetary initiatives during the last decade have substantially weakened the negotiating position of Aboriginal people; and

(3)

that the amendments proposed by the Government;

(a)

represent a missed opportunity to remedy the real causes of delay and bottleneck in the native title system;

(b)

overlook calls from the Minerals Council of Australia and successive ATSI Social Justice Commissioners to properly resource Native Title Representative Bodies and Prescribed Bodies Corporate;

(c)

contain changes which, despite being intended to improve the performance of Native Title Representative Bodies, will adversely effect their capacity to represent and pursue Indigenous interests; and

(d)

run the risk of making the claims resolution process slower and more bureaucratic”.

In speaking to the amendment, I note that back in September 2005 the government announced a package of six changes to the native title system. The primary purpose of this bill is to amend the Native Title Act of 1993 to implement aspects of four of the six elements of that package. The bill is expressed in terms of four schedules, and I would like to make some observations about each of those schedules.

At the heart of the first schedule is the introduction of periodic terms applying to the recognised status of native title representative bodies, with those periods to range between one and six years. I note that it is already the case that the minister is able to withdraw status recognition if a body is underperforming. It strikes me that periodic terms as to recognition will destabilise negotiations with third parties and create uncertainty surrounding development proposals, discourage already fragile staff tenure and the build-up of corporate knowledge, inhibit strategic business planning and the liquidity of these organisations, and increase infrastructure costs. It is my view that one-year periodic terms are inconsistent with the spirit of reducing red tape in this area. I also note that these organisations are representative institutions; they ought to be improved in quality and capacity rather than disbanded.

It is further part of schedule 1 that it broadens those native title service providers which can be recognised. I note that could lead to the government doing an open tender and bringing in non-Indigenous law firms. It was indicated to me in the briefing, which the Attorney-General kindly provided, that that is not the government’s intention, nevertheless, that is the way that the legislation is drafted. It is also part of schedule 1 that, with the passage of this bill, the minister would be able to reduce the amount of notice which he is required to give to a native title representative body, should he wish to close one down, from 90 to 60 days.

It is also part of schedule 1 that there is the removal of the requirement that native title representative bodies present their annual reports to parliament. It is the case that these bodies have to do an annual report in any case and I wish to query what harm there is in submitting these annual reports to parliament to provide that additional oversight. It is also part of schedule 1 that it enables the minister to change the territorial boundaries for the native title representative bodies without native title representative body consent. So there are a series of issues raised by schedule 1.

The heart of schedule 2 is the expansion of the power and role of the National Native Title Tribunal. There has been concern expressed by stakeholders regarding the role of that tribunal as being bureaucratic and slowing down the system. I will come back to some of these issues in more detail shortly. Schedule 3 deals with prescribed body corporate amendments and it is my view that the proposals in this schedule are not controversial and ought to be supported. Schedule 4 is essentially about assistance for nonclaimants and contains changes aimed at encouraging negotiation over litigation from non-claimant parties. Again it is my view that these matters are largely uncontroversial and can be supported.

There has been a very limited time for consultation in relation to the legislation. It has occurred over the summer. But it is clear that there is substantial opposition to the legislation. I understand the native title representative bodies unanimously oppose the bill. The Federal Court has expressed some concerns with substantial elements affecting it. The Aboriginal and Torres Strait Islander Social Justice Commissioner rejects most of it. The Western Australian state government and the Minerals Council have also expressed concerns, which I will come to in a little more detail shortly.

The consultation process has been such that, after the bill was introduced on 7 December, the Senate referred the provisions of the bill to the Senate Standing Committee on Legal and Constitutional Affairs for inquiry and report by 23 February. Submissions were required by 19 January. I think it is regrettable that the government has brought this bill on for debate in this House before we get the benefit of the Senate committee report. I think that a lot of the discussion around the detail will have to await that Senate committee report and the recommendations of detail and substance which arise from it. There has been an extensive brief prepared by the Department of Parliamentary Services in relation to this bill and I am indebted to the Parliamentary Library for the work that they have done in putting it together. I intend to draw on it in some of the remarks I want to make about the content of the bill.

As I said, there are a series of organisations expressing concern about the consultation arrangements. For example, in its submission to the Senate committee, the Minerals Council of Australia has identified a lack of consultation with respect to this bill’s particular set of changes. They have contrasted that with other elements of the Attorney-General’s proposed changes and the consultation involved. They have expressed the view that the time frame for the inquiry into the final form of this legislation and its precise approach to implementing policies is arguably too short, in contrast with the more consultative nature of some of the government’s other preparatory work. One of the bodies that is a primary body dealt with in this legislation concerns the native title representative bodies which represent the native title interests of Indigenous Australians in a particular region. The bill also deals with prescribed bodies corporate. Where courts make a determination that native title exists, native titleholders are required to establish such a body corporate to represent them as a group and to manage their native title rights and interests.

The issue is frequently raised about the level of funding to each of these two primary bodies, the native title representative bodies and the prescribed body corporates. That has been an issue for quite some time. For example, the Native Title Tribunal’s most recent annual report observed that, for some years, there have been concerns about the perceived inadequacy of the human and financial resources available to representative bodies to perform their functions. In March last year, the parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund reported on the operation of these representative bodies. Both the majority report and the minority report expressed concerns about the issue of adequacy of resourcing.

The majority report recommended that the Commonwealth immediately review the adequacy of the level of funding provided by the Office of Indigenous Policy Coordination to native title representative bodies for capacity-building activities, including management and staff development and information technology. The minority report was even more strongly worded, saying that the evidence submitted to the committee on the impact of chronic underfunding was prolific, forceful and emanated from a variety of stakeholders, including the minerals sector.

The Minerals Council of Australia noted that, while reporting requirements had increased significantly in the past few years, there had been no real increase in operational funds since 1995. This meant that the native title representative bodies had less money to carry out their functions on the ground. It also commented that the workload of these bodies had risen steadily as the number of native title claims and mining applications proliferated. Of course, we can see a link between that and the issues of delays and failure to resolve claims. The Minerals Council again raised its concerns over funding in the course of the inquiry into this legislation. There have also been concerns expressed by the Human Rights and Equal Opportunity Commission’s Aboriginal and Torres Strait Islander Social Justice Commissioner along the following lines:

Inadequate funding of representative bodies has had the cumulative effect of undermining—

the native title representative bodies’—

... capacity to protect Indigenous interests in the native title process ... it has diminished the extent to which Indigenous people can enjoy their land, their culture, and the social, economic and political structures built upon them. In effect, it has diminished Indigenous peoples’ enjoyment of their human rights.

The need to increase ... funding has been recommended in the reports and reviews of government agencies, parliamentary committees, state governments and industry.

Despite recommendations to this effect in reports in 1995, 1999 and 2002, native title representative bodies have not received funding increases. The commissioner notes that, if these reforms are implemented, native title representative bodies will require further funds:

... as it is likely that their obligations and functions will change.

The Native Title Act does not envisage that the government fund native title claims directly but, instead, that it funds the representative bodies. The government does, however, fund respondent bodies. This bill, indeed, broadens that process.

The guidelines approved by the Attorney-General are in relation to applications for financial assistance for native title matters. One of the key features of the guidelines was that assistance was available to a person or organisation for mediation of native title matters and for negotiation of Indigenous land use agreements. Other key features were that assisted parties were not required to make their own contributions and that the hardship test was removed from the act. The Attorney-General’s Department has issued new draft funding guidelines which will modify these rules again and introduce more strenuous consideration of whether respondent parties are in a position to self-fund.

The sorts of concerns expressed about these proposals include that there may be insufficient mechanisms for review of ministerial or bureaucratic decisions being made in this area. Accountability for native title representative bodies is important, but they are presently subjected to a substantial amount of scrutiny. The derecognition process needs to be done according to clearly defined and transparently adjudicated criteria. There are currently minimal rights of review over ministerial discretion. While some of these decisions must be taken according to set criteria, the proposed amendments would remove some of the considerations to be included in those criteria.

The Office of Native Title of Western Australia suggested that the government provide further information about why the statutory criteria which previously underpinned the minister’s decisions regarding recognition of native title representative bodies—that is, satisfactory representation and consultation—have been removed by the bill. These amendments regarding the recognition and the withdrawal of recognition of representative bodies are declared by the bill as legislative instruments.

These legislative instruments are subject to disallowance. The amendments specify that three types of decisions by the minister are legislative instruments: the proposed section under which a minister can recognise a representative body; the proposed section under which the minister withdraws recognition from a defunct body or body which has asked to have recognition withdrawn; and the proposed section under which a minister withdraws recognition due to unsatisfactory performance or financial irregularities.

As the decisions made by the minister are made by legislative instrument, they are no longer subject to review under the Administrative Decisions (Judicial Review) Act. The Human Rights and Equal Opportunity Commission has raised concerns regarding those arrangements. It has argued that, by removing such decisions from the operations of the Administrative Decisions (Judicial Review) Act, the bill does severe damage to representative bodies. It argues that the only avenue for judicial review when a legislative instrument has been utilised is by prerogative writ, which is cumbersome and expensive. Furthermore, by subjecting them to disallowance proceedings:

... the proposed amendment would politicise recognition decisions, making them vulnerable to inappropriate public comment and potential political disruption in what should be a principled and predictable administrative process.

Another area of concern has been the length of time for which a representative body is recognised. The Minerals Council of Australia has proposed, for example, that periods of recognition for a representative body be three to six years rather than the proposed one to six years. For reasons of capacity building, certainty and stability, they suggest that recognition for less than three years would be inadequate.

The barrister John Basten has commented:

Representative bodies require a range of skills and expertise to perform their functions properly. Internally, managerial, accounting and administrative skills are at a premium. In addition, they require specialist professional services from anthropologists, land managers and lawyers. It is likely that such organisations will take years to develop critical levels of administrative competence, not merely to perform their functions adequately but to provide a work environment in which trained professionals will feel comfortable and will remain without unduly high levels of turnover.

These are serious concerns that have been expressed about the proposed changes in relation to periods of recognition.

There has also been discussion about the role of the National Native Title Tribunal. The Federal Court has argued—and this has appeared in other submissions as well—that the amendment giving the National Native Title Tribunal greater directive powers is an inappropriate legal and constitutional arrangement because it is likely to increase administrative costs—because ultimately the court will need to enforce the National Native Title Tribunal’s new powers if they are to be effective—and could violate the Constitution by giving judicial powers to a body which is primarily administrative in nature. It also argues that coercive powers are inappropriate in a mediation setting and that the court’s power to mediate should not be restricted while the tribunal is mediating a matter—as the amendments propose to do. There are a wide range of other concerns which will presumably be examined in the Senate report. As I indicated when I commenced my remarks, the debate in the House on this bill is scheduled for a time when that report is still in its preparatory stages.

I would now like to examine in a little more detail some of the changes proposed in the bill. The minister will have discretion to stipulate a period of recognition of between one and six years. There is a requirement that the representative body will satisfactorily represent persons who hold native title and will able to consult effectively with Aboriginal and Torres Strait Islanders living in the area being removed. The provisions which remain define who the Commonwealth minister may recognise as a representative body by providing that the body must be satisfactorily performing its functions as a representative body or would be able to do so. The functions of a representative body are itemised in section 203B and include facilitation and assistance functions, certification functions, notification functions, dispute resolution functions and internal review functions.

As I mentioned earlier, the minister is also able, after due consultation and consideration, to unilaterally extend or vary the area of a represented body. While the minister is required to consult before making these changes, there is no requirement that the views of the relevant representative bodies be a concluding feature of the matter—and that is a matter of some controversy as well. The standard time frame in which representative bodies are required to respond under a variety of sections has been shortened from 90 days to 60 days and the references in the current act to the need for a representative body to satisfactorily represent the native title holders and consult effectively with Aboriginal and Torres Strait Islander people have generally been abandoned in favour of a shorter formulation focusing on whether the representative body is satisfactorily performing its functions.

There is also some change made in the area of claims resolution review. Section 84 has been amended to reduce the number of grounds that entitle a person to become a party to native title proceedings. The previous procedure was that the registrar notified a range of potential parties to the proceedings. In order to join, what was required was that the party reply to the registrar within the required time frame. The amendments limit the range of people to whom the registrar will give notice of proceedings and stipulate a more restrictive range of those who are automatically a party to proceedings. The amendment requires an ‘interest in relation to land or waters’ whereas previously it was simply ‘an interest’.

As I indicated before, the Native Title Tribunal is to be given significant new powers. Parties are required to act in good faith in mediations, and the tribunal may include details of any failure to so act in its annual report. If it is proposed to include such details in the annual report, the presiding member must inform the government party before doing so. Apart from documenting the issue in the annual report, the presiding member may report the matter to the relevant Commonwealth, state or territory minister; the relevant secretary of a department; the relevant legal professional body; and the Federal Court.

As I have indicated, we have concerns about whether these changes are going to help matters and result in the swifter and more efficient resolution of claims—which I think everyone would like to see—or result in more uncertainty and more delays and not help in the objective of reducing the time taken to resolve native title claims. Based on his previous public comments, I suspect that the Attorney-General will be claiming support for this legislation from the states. He referred in a press release to the native title ministers meeting in December 2006. I had a look at the communique from the meeting. It is quite clear to me that the Attorney-General is drawing a long bow in claiming support from the states on the basis of a communique in which the states have agreed that ministers should continue working together to secure better outcomes from the system.

Furthermore, I draw the attention of the House to the submission made by the Western Australian government’s Office of Native Title to the inquiry into this legislation and, in particular, to the comments and concerns expressed about schedule 2, which goes to this issue of claims resolution review. The Office of Native Title indicates that it supports the inclusion of a good-faith requirement in the Native Title Act in respect of native title mediation, but it goes on to say:

However, to preserve the impartiality of the presiding National Native Title Tribunal (NNTT) member, parties to the mediation rather than the NNTT member should raise any alleged breaches in the first instance.

Further, and more significantly, the proposed sanctions would see the NNTT empowered to make reports about potential breaches of the good faith requirement to certain entities ... including the Court, and to include details of alleged breaches by government parties in its annual report. It is a matter of concern that the proposed amendments would not accord natural justice to parties allegedly contravening the good faith requirement, in so far as there is no requirement for the NNTT to advise and/or seek the views of parties considered to be in breach before it reports or publishes details of an alleged breach. It is recommended the proposed provisions be amended to require the presiding NNTT member to advise a party if he or she considers they are not acting in good faith and give that party an opportunity to respond.

Further in relation to schedule 2 is the question of the connection review function. The Office of Native Title in Western Australia says:

The proposed amendments to enable the NNTT to undertake a review of connection material have the potential to undermine State and Territory government connection assessment processes, cause further delays in the resolution of native title claims and place increased pressure on an already limited pool of experts in the system.

It is understood the main intent of the provisions is to facilitate the agreement of non-government third parties to proposed consent determinations, where they are reluctant to accept the relevant State or Territory government’s assessment that connection is met. Consistent with the Commonwealth’s push for States and Territories to adopt transparent practices, the Western Australian Government has released connection guidelines and, in the case of positive assessments, provides respondent parties with a ‘position paper’ outlining the basis upon which the Government considers connection is met. Despite participation in the proposed NNTT connection reviews being voluntary, native title parties could nevertheless use the provisions as a means of “forum shopping” if the State Government considers that connection is not met, potentially undermining the transparent processes the Western Australian Government has put in place.

In addition, if claimants seek an NNTT review following a decision of the relevant government that connection is not satisfied, the resolution of the claim, whether by an agreed or litigated outcome that native title does not exist, will also be further delayed. The amendments also anticipate the NNTT relying on consultants to conduct a review, which could further increase demand on an already limited pool of qualified experts, such as anthropologists. The Commonwealth Attorney-General’s recent comments acknowledge that the current shortage of anthropologists in the native title system is contributing to the delay in resolving native title claims. If the NNTT also seeks to rely on anthropologists in undertaking reviews of connection, the demands on anthropologists and the associated delay in resolving claims would increase.

Given that background, I have moved the second reading amendment in my name. I look forward to the Senate committee’s report and to further debate in this House and in the Senate on the detail of this bill.

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