Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Hansard source

I will depart for just a second before I deal with each of those amendments—(2), (4) and (7). Notwithstanding the denial by the government, it seems to me that in this exercise you have a range of amendments to the native title system, to use a broader term, which appear to be adding more red tape and to be bureaucratic in nature, and which appear to provide for small changes all the way throughout. They are peppered throughout; each one of them might on its own have some merit, but it is not clear where that merit is and how that merit is going to work in effect. When you then look more broadly at the system, you ask, ‘If the government did have an opportunity’—which it has—‘to improve the system, why wouldn’t it look more broadly at the system and, if there are significant failings within it, bring forward bill recommendations, develop amendments to it and then pursue those amendments broadly, through a consultative process as well, to build cooperation and understanding of why these amendments are here?’ I do not see that that has been adopted in this process.

Even when you then examine the Senate committee report—just on a range of those amendments—you end up with criticisms, from both the majority report and the minority report, of those exact issues. And the criticisms do not come from just the one quarter. In the area that I have worked in, usually you end up with the issues or the criticism coming from one group or one quarter. Rarely do you see them combine, where you have the disciplines within the native title system and the miners and claimants and all the others adding their weight to the criticism of the process. They include similar phrases, agreeing that the current system is taking a long time to process, but they do not see how these amendments which you are proposing are going to improve the system substantially. You might then say, ‘Well, time will tell,’ and time might be on your side. I do not see it on the side of the participants in the system. The system has not produced an effective and efficient system to date. It has tried; there is no doubt about that, and it should be commended for that. It is unclear how the amendments that you are now proposing will provide an efficient and effective process for all to enjoy, especially when you find—even amongst the criticisms, which I do not see often in the Senate Legal and Constitutional Legislation Committee—people who you would think have disparate views and different positions coming together to complain that the system needs to provide effective, efficient and quick outcomes but not cheapen the process either, because it has to be enduring. For it to be enduring, you expect that the participants who are the negotiators and claimants are also enduring in the system. It seems to me that the amendments the government has put forward in this bill do not provide significant benefit and do not provide an enduring system where parties can be confident that over time they will be dealing with the same participants throughout.

Having said all that, I will turn to some of the specifics. Ultimately, if the government does not agree to these amendments that Labor are proposing, we will oppose schedule 1 because we do not in total see the benefits that are contained within it. We think that government, in picking up some of the committee recommendations, has still not gone far enough to ensure that the various areas that are recognised are sufficiently dealt with in a sensible manner, especially when you look at how these bodies—particularly native title bodies—work on the ground. You then have to ask yourself: will it benefit the claimants in that system; will it ensure that there are bodies that will endure? You raise an interesting point: you say there have been those that have not worked. It strikes me, though, to ask: is this the way to provide for machinery amendments to a legislative enactment as a way of fixing it? Without more, my answer would be no.

What I would also like to hear from the government during this debate is what else they will do to try to facilitate the process, because a lot of the participants in the system who provided information to the Senate committee report talked about broader issues as well. In short, without more, the system will continue as it is.

I will deal with amendments (2) to (9). Amendments (2) and (5) relate to the definition and criteria of what is an eligible body. Amendment (2) proposes a change that would extend the bodies which can operate NTRBs to include corporations incorporated under the Corporations Act 2001. Such corporations do not have special constitutional requirements relating to Indigenous membership as do Aboriginal corporations under the Aboriginal Councils and Associations Act 1976 and its replacement, the Corporations (Aboriginal and Torres Strait Islander) Act 2006. Such a change is a shift away from the importance of the representative nature of the NTRBs. Amendment (2) seeks to rectify this imbalance.

Amendment (5) eliminates an unacceptable change to the criteria of eligibility that the Commonwealth minister is presently required to be satisfied about before recognising an eligible body as a representative body under subsection 203AD(1), whether during or after the transition period. Those are: (a) the body does or will satisfactorily represent native title holders and persons who may hold native title in its area; and (b) the body does or will consult effectively with Aboriginal peoples and Torres Strait Islanders living in its area. Thus the only criteria would be: (c) that, if the body is already a representative body, the body satisfactorily performs its existing functions; and (d) the body would be able to perform satisfactorily the functions of a representative body.

This proposed change potentially limits the importance of Aboriginal representation by representative bodies representing the native title holder and potential native title holders. Consulting effectively with Aboriginal people and Torres Strait Islanders goes to the heart of the function of a representative body. It is therefore unacceptable to Labor. Changes are sought as part of that.

When you examine it, I do not think the EM adequately explains the direction the government is going with this. I do not think the government has articulated its motive behind many of these changes. Hopefully during this debate we might be able to tease out some of the underlying motive of the government. It is not apparent that it is about improving the system; it is not apparent that it is about removing the red tape. It is said to be about accountability, but accountability comes with responsibility—responsibility to ensure that the Aboriginal and Torres Strait Islander people have a say and a stake in the process and are able to adequately do that. I am not convinced that the changes that are proposed will do that, and that is why Labor is moving its amendments. I will pause there and see if anyone wants to comment, otherwise I will run into the 15-minute rule again, as I did yesterday. I will wait for a moment.