Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Hansard source

The Native Title Act was passed by the Keating government in 1993, giving legislative form to the historic decision of the High Court of Australia in the Mabo decision. Since 1993, Labor has worked to ensure that our native title laws continue to facilitate the recognition and protection of rights of First Nations people to country. We in Labor have a proud history of creating, strengthening and defending native title law, working in close and respectful consultation with the communities most directly affected as well as with the wider Australian community. Through our decades of work in this area, Labor understands that the native title system is still far from perfect. Numerous inquiries into the native title system have highlighted some of its problems, and the inquiry into this bill, the Native Title Legislation Amendment Bill 2019, by the Senate Legal and Constitutional Affairs Legislation Committee revealed once again just how dissatisfied many First Nations communities are with the way in which the Native Title Act currently operates.

It was concerns about shortcomings in the native title system that led me, as Attorney-General in 2013, to direct the Australian Law Reform Commission to inquire into a number of aspects of the Native Title Act. The Australian Law Reform Commission carried out that inquiry and in May 2015 provided a comprehensive report—regrettably to the coalition government—including 30 detailed recommendations for reform. It is regrettable that five years have passed and this government has still not bothered to produce a formal response to that excellent report by the Australian Law Reform Commission and the detailed recommendations that it made.

This bill makes a number of reforms to the Native Title Act. Labor will be supporting the bill because we support those changes designed to improve native title claims resolution, agreement-making, Indigenous decision-making and dispute resolution processes. However, as the committee minority report into this bill, from Labor senators, makes very clear, Labor is concerned about the fitness for purpose of the native title system generally and has a number of specific concerns about several provisions in the bill. The Labor committee members made the following general criticism of the native title system:

First Nations have placed their trust in legal institutions to secure their native title rights yet have be repeatedly supplanted by the legislature denying their position in the interests of third parties.

Multiple submitters noted that the high original undertaking of the Native Title Act has been brought into disrepute by amendments that have progressively eroded the rights and interests of First Nations. The Labor senators on the committee went on to note:

… recently significant court decisions have been made affecting native title. In McGlade v Native Title Registrar [2017] FCAFC 10 (McGlade), the Full Federal Court of Australia made a decision with potentially sweeping impacts on a range of existing and future native title claims, negotiations and arrangements. The Government responded by expediting amendments to the Native Title Act, primarily as advocated for by third parties concerned their interests would be impacted by the McGlade decision. In 2019, in Northern Territory v Griffiths[1] (Timber Creek), the High Court of Australia ruled that where native title was extinguished, native title holders were entitled to compensation for both economic loss and for non-economic loss arising from the intangible harm caused by the loss of spiritual connection to country. The Government has not responded to the Timber Creek decision. Labor Senators are concerned at the clear pattern from this Government of being unresponsive to native title holders but being expedient to accommodate the interests of third parties.

However, because there are a number of aspects of this bill which Labor supports, and it is now just over a year since this bill was introduced, Labor has agreed to expedite passage today in the expectation that this bill can be subject to a full and rigorous debate in the other place with a view to passing it before the end of the parliamentary year. My friend and colleague in the other place, the shadow assistant minister for reconciliation, Senator Dodson, participated in the committee inquiry into this bill and I expect that he will speak in some detail about Labor's outstanding concerns regarding particular provisions in this bill when it is debated there.

I will highlight just one of Labor's concerns here today, and that is the changes the bill makes to the law in relation to deregistration of Indigenous Land Use Agreements. The government argues that the amendments to sections 24EB and 24EBA do no more than clarify how the current law operates. However, far from removing doubt, as section 24EB purports to do, it creates doubt about the integrity of the system by purporting to establish a presumption of validity for future acts done pursuant to an ILUA, notwithstanding that the ILUA has been deregistered as a consequence of fraud, duress or undue influence.

This aspect of the operation of Indigenous Land Use Agreements was examined by a 2016 COAG investigation into Indigenous land administration and use. Amendments of the kind this bill contains were considered by that investigation but were opposed by the Expert Indigenous Working Group participating in it. Many submitters to the inquiry into this bill also expressed concern about the consequences of validating future acts, even where the ILUA that those future acts relate to has been so tainted by fraud, duress or undue influence that it has been deregistered. As the National Native Title Council noted:

This means that any future act authorised by the ILUA that has been done through fraud, undue influence or duress remains valid and will still affect native title.

The Law Council of Australia opposes these provisions for the same reasons.

Given the opposition to these changes to the law from the COAG Expert Indigenous Working Group and from other stakeholders during the inquiry into the bill, including the Law Council of Australia, our firm view is that these amendments should be reviewed as a priority as part of the independent evaluation of this bill in five years time. As I've said, I'll leave a more detailed discussion of our outstanding concerns about certain provisions in this bill to the shadow assistant minister for reconciliation when a fuller debate on this bill takes place in the other place. But I will briefly make two further points. First, we thank the government for agreeing to an amendment in this bill requiring an evaluation and report on its operation within five years of commencement. The recommendation for a review of this kind was one of the recommendations of the Senate committee's minority report.

Second, I note that, as a consequence of the government's changes to laws directing the work of the Australian Human Rights Commission, since 2016 the mandatory annual report by the Aboriginal and Torres Strait Islander Social Justice Commissioner into social justice and native title is no longer being produced. We therefore thank the government for its commitment to instruct the social justice commissioner to undertake a review of the Native Title Act following the completion of her current work on her Wiyi Yani U Thangani (Women's Voices) report.

Labor understands that law reform is an ongoing process and that considerable work still needs to be done to review and reform the native title regime. Many Indigenous communities understand, through their intimate experience of native title law, how that law works in practice and how it could work better. That's why we in Labor are committed to always consulting closely with Indigenous Australians on any changes to the Native Title Act, and I call on the government to always show that same concern and respect.

Before I finish my remarks about the native title reforms contained in this bill, it's appropriate to acknowledge that this is NAIDOC Week, our nation's annual celebration of the history, culture and achievements of Aboriginal and Torres Strait Islander peoples. Speaking on the occasion of NAIDOC Week just yesterday, my friend and colleague the shadow minister for Indigenous Australians and member for Barton reiterated in unequivocal terms that Labor's position on the Uluru Statement from the Heart is rock-solid and it includes support for establishing an Indigenous voice to the parliament in our Constitution. It includes establishing a makarrata commission, which will have responsibility for agreement and treaty-making, and it includes establishing a national process for truth-telling.

My friend and colleague in the other place Senator Dodson, known across the nation as the father of reconciliation, had this to say yesterday:

The Uluru Statement is a very important invitation to the nation, in order to take things forward and deal with a Voice to the Parliament, have that constitutionally entrenched; to deal with the Truth-Telling about our history, and our relationship, and an understanding of how it's intertwined, and has contributed good things as well as many sad things. But it's also an opportunity for us to relook at our relationship and enter into agreements around the many things that still cause consternation to First Nations peoples, and that actually diminish our nation because we haven't resolved them.

Voice. Treaty. Truth. These are the pillars of Labor's commitment to honouring the Uluru Statement from the Heart. It is of deep regret to me that the three pillars of the Morrison government's response to that invitation to reconciliation appear to be arrogant silence, cynical obfuscation and, if forced to speak on the subject, lame excuses and marketing spin trying to justify the government continuing to do precisely nothing.

Despite the appalling failings of the government in responding to the Uluru statement and despite the shortcomings in this bill, it does make a number of positive reforms to native title law, and Labor commends this bill to the House. I move the second reading amendment that is being circulated in my name, in these terms:

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:

(1) recognises the critical importance of native title law for the self-determination of First Nations people;

(2) notes that several provisions of this bill as presently drafted may undermine the integrity of the Native Title system;

(3) regrets that the Government has declined to make requested amendments to remedy the identified deficiencies in the bill; and

(4) calls on the Government to act on matters of importance to First Nations people, including:

(a) improving native title law so that it better serves the interests of First Nations and non-Indigenous Australians;

(b) improving access to justice and justice outcomes for First Nations people;

(c) progressing a meaningful government response to the Uluru Statement from the Heart; and

(d) devoting more attention and resources to Closing the Gap targets to reduce the disparities between First Nations and non-Indigenous Australians".

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