David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Hansard source

Senators on the other side say, ‘You’re the government; you should be doing it.’ At every point and at every turn, the opposition have had to be dragged kicking and screaming to address this act—but they will not. When they are given an opportunity to make a contribution, all we get is carping negativity. The government stands on its record against that of the opposition in this place when it comes to securing practical and considered measures for native title reform for all Australians.

The opposition claims that there is widespread opposition from stakeholders to schedules 1 and 2. Of course, with almost every piece of legislation inaugurated by the Howard government in this place, the opposition takes the perspective of shaking its head and saying, ‘No, no, no.’ Senator Ludwig claims that the Aboriginal and Torres Strait Islander Social Justice Commissioner ‘rejects most of these amendments’. The social justice commissioner noted in his submission to the Senate committee:

I welcome and support many of the reforms in Schedule 2 of the Bill ...

That is some distance, I respectfully say to Senator Ludwig, from his annotated commentary on what the social justice commissioner actually said. Likewise, Senator Ludwig points to concerns raised about the bill by the Western Australian Office of Native Title. While the WA Office of Native Title does note some concerns, it states in its submission:

Overall, the Office of Native Title considers the amendments proposed in the Bill have the potential to improve practical operation of the … system.

That is an objective assessment that I think is worth while. Of course, the opposition’s response is still to say, ‘No, they are opposed.’ The Minerals Council of Australia said in its submission:

The MCA supports … the proposed reforms to the NTA—

the Native Title Act—

relating to representative Aboriginal and Torres Strait Islander bodies, including … a simplified de-recognition process for poorly performing NTRBs …

The government’s reform package has been the subject of extensive consultation over the period since the reforms were announced in September 2005. Those consulted have been strongly in favour of the approach that the government is taking with these reforms to seek to improve the performance of the system to facilitate quicker and more effective processes for claim resolution and to not introduce substantial change to a system that is reasonably understood by the parties—notwithstanding that it is highly complex. The parties are increasingly demonstrating the capacity to be able to work within this framework. Ultimately, the government can improve the processes of native title and the speed with which the system is able to deliver outcomes. This will depend on the behaviour of the parties and the manner in which they approach their future dealings with the Federal Court and the Native Title Tribunal.

As I have said, I want to thank the Senate Standing Committee on Legal and Constitutional Affairs for its detailed consideration of this bill. The government has carefully considered the recommendations made by the Senate committee and accepts the large majority of them. Only two of the recommendations proposed changes to the bill, although a third recommended consideration of a further amendment in a subsequent bill. I will deal with each of the recommendations in turn to record the government’s response to the Senate committee’s report.

With respect to recommendation 1, the committee proposed increasing the minimum period of recognition for a native title representative body from one to two years. The government will implement a modified form of this recommendation through government amendments to the bill. The minimum period of recognition will, in most circumstances, be increased to two years. However, the minister will be able to specify minimum recognition periods of between one and two years where a funding controller is appointed to the representative body, the representative body is under external administration or a term of that period would promote the efficient performance of the functions of the representative body and representative bodies generally. The government considers that these amendments are an acceptable modification of the recommendations made by the legal and constitutional committee as they will generally provide representative bodies with certainty of a two-year recognition period while ensuring that in appropriate circumstances the minister retains the flexibility to reorganise and recognise a representative body for between one and two years.

The committee’s recommendation 2 is that the government finalise and implement funding arrangements for prescribed bodies corporate as a matter of priority. The government supports this recommendation. However, the government’s expectation is that support for prescribed bodies corporate will, in most cases, be delivered through native title representative bodies rather than directly to prescribed bodies corporate. There may be limited circumstances in which prescribed bodies corporate may be more appropriately provided with director support by the Australian government—for example, where the prescribed body corporate does not have a functioning relationship with the native title representative body. These matters are currently being progressed as a high priority.

Recommendation 3 was that a code of conduct for tribunal mediation be developed without delay. The Attorney-General’s Department is developing a code of conduct at present. I understand the department will be consulting key stakeholders on the drafting of that proposal in coming months.

With respect to recommendation 4, the committee suggested that the bill be amended to enable parties to object to directions made by the National Native Title Tribunal on the grounds of confidentiality, privilege or prejudice. The tribunal’s new compulsory powers are an important part of the package of additional tools the government has given to the tribunal to enable it to secure more negotiated outcomes. This is a very crucial and fundamental direction within these changes. The amendments in recommendation 4 would significantly reduce the effectiveness of the powers given to the tribunal to compel production of certain documents. Further, as drafted, the provisions do not expressly enable the tribunal to compel production of privileged material. It is also clear that the intent of the legislation is that material subject to legal professional privilege cannot be compelled to be produced. On this basis, under the general rules of statutory construction, material subject to legal professional privilege would of course be excluded from such power. The final decision about the production of documents is for the court to make. The bill contains efficient safeguards to ensure that, where parties have legitimate objections to the production of material and objections based on prejudice, privilege or confidentiality, the objections will be taken into account before any enforcement action is taken.

Recommendation 5 of the committee proposed that guidelines in relation to the exercise of the tribunal’s new compulsory powers be developed as a matter of priority. The government accepts this recommendation and considers guidelines would be a valuable tool to assist the tribunal and parties to native title proceedings. Implementation will be a matter for the tribunal. In recommendation 6 the committee suggested the development of a protocol between the Federal Court and the tribunal, which would allow noncompliance with directions issued by the tribunal to be dealt with as a matter of priority by the court. The government accepts recommendation 6. Such a protocol would complement the other measures in the government’s package of reforms encouraging better communication and coordination between the court and the tribunal. Developing a protocol will be a matter for the court and the tribunal.

I turn to recommendation 7. The committee recommended that the tribunal develop an ongoing training program for its members. The government accepts this recommendation. I understand the tribunal is developing a revised program for the induction of new members and the ongoing professional development of all members, including in relation to the mediation of native title matters. In recommendation 8 the committee recommended that the government commit to reviewing the connection review function in two years time. The government accepts this recommendation. Monitoring and review of the connection review function would be a useful initiative in ensuring the provisions operate as the government has intended.

In recommendation 9, the committee recommended that the government consider proposals made by Telstra to the committee in relation to proposed section 87A with a view to including amendments in the second native title amendment bill. The government accepts recommendation 9 and will give consideration to the suggestions put forward by Telstra. Any amendments to section 87A would be made in the second native title amendment bill, scheduled for introduction later this sitting. Finally, the committee recommended that, subject to the other recommendations made, the bill be passed—and I say again that the committee recommended that the bill be passed—as an important step in the right direction towards expediting this complicated process. Of course, the government accept this recommendation, which is subject to recommendation 1, which we implemented in a modified form, and recommendation 4, which will not be implemented for the reasons I have outlined.

In my final remarks I note that the changes in the Native Title Amendment Bill 2006 are an important part of the government’s native title reform package. Together with other elements of the reforms, they will enhance transparency and accountability in this complicated system. The changes before us today are designed to help shorten the time it takes to resolve claims. A more effective and efficient resolution of native title claims is in the interests of all stakeholders, all people involved, in the native title system. A number of government amendments are to be moved. It is best that their content be addressed at the committee stage. I commend this bill to the Senate.

Question agreed to.

Bill read a second time.

Ordered that consideration of this bill in Committee of the Whole be made an order of the day for a later hour.