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

Amendment (23), if adopted, would delete item 52 from the bill, which provides an ability for the tribunal to report breaches in respect of mediating in good faith to various external bodies, including the Commonwealth and state ministers, secretaries of funding bodies and legal professional bodies that issue practising certificates. This is a peculiar section, in that it does not seem to me to be conducive to the mediation process. Labor is unaware of what value the government says it will provide to the mediation process.

In mediation there may be events that occur that are confidential between the parties and that might cause some people to raise an eyebrow. In these instances, if there is a breach in respect of good faith, it might be a minor breach. The legislation does not talk about the scale of the breach. With a mediation that is actually finalising a successful outcome, there might have been some minor transgressions that occurred in good faith that the parties sorted out on the way. In other words, during the mediation process the matter might have come to light and been resolved and the parties moved on.

But there is this follow-up position where all of these matters are circulating which would otherwise have been confidential between the parties. When people come to the bargaining table and have the mediator mediate, they will be aware of the issues that will otherwise flow. In other words, if there are breaches in respect of good faith, then various external bodies will all find that they have the notification process.

It would seem strange if there was finally a successful outcome and yet the parties were distracted by the breaches in respect of good faith, if I can put it that way. That is not to say that the mediator and the parties should not act in good faith. It is a requirement. They should act in good faith. If the government supports that principle, it would be helpful to see it elsewhere in the legislation and in other Commonwealth legislation as well.

The other point, though, is that where there are breakdowns in good faith there needs to be remedial action. That is the usual course. To use a well-worn expression, I think the jury is still out on whether the report actually provides for the type of remedial action that the government envisages—that is, getting the parties to deal with the matter in good faith. Labor is unconvinced that that will assist.

On that basis, that requirement does not seem to add anything and it would be much better to leave it out, more because of the way it has been defined and the way it will work in practice. Therefore, whilst we do support good faith as a concept, the way it has been put in here would really undermine its utility. It is disappointing to see that.

Amendment (24) seeks to amend item 53, which inserts division 4AA of part 6, reviewing whether there are native title rights and interests. This would give the tribunal the power to conduct a review on whether a native title claim group holds a native title over its claim area. According to the explanatory memorandum, the purpose of this is to make mediation more effective and facilitate agreement between parties. The other items are incidental to this.

This section is problematic. Under item 53 as to section 136GC(7), evidence given in the course of the review cannot be raised in later court proceedings without the consent of the participating parties, effectively without privilege protection. However, proposed section 136GE provides that the person conducting the review is to prepare a report and may provide a copy to the court. According to the explanatory memorandum, the court can then adopt the findings of the review. Section 136GE also provides that a copy of the report may be given to other parties.

These provisions would defeat the protection under 136GC(7). This could be remedied by an amendment to the effect that review reports can only be provided to the federal court and non-participating parties—that is, section 136GE(2)—with the consent of the participating parties, and that is the rationale underpinning amendment (24).

Amendment (25) amends item 57, which would insert subdivision AA into division 5 of part 6. These inquiries are to be conducted by the tribunal, which is section 138B(3), as per Labor’s amendment, which would mean that inquiries could not be requested prior to a general referral to a mediation. This matter was recommended by the Aboriginal and Torres Strait Islander Social Justice Commissioner.

Amendment (27) amends item 67, which provides for the inquiry report to be given to the court, and inserts a requirement that the parties must consent to this. The proposed amendment to the item is recommended by the Aboriginal and Torres Strait Islander Social Justice Commissioner.

Amendment (28) seeks to delete item 73, which proposes to empower the court to summarily dismiss native title claims that do not pass the merits aspect of the tribunal administered registration test in section 190B. Quite frankly, this is unlikely to relieve the overload on the system, as the Native Title Tribunal will have to retest all unregistered applications.

There is also a view that the registration test provisions are not the same in law as the legal test for native title, which is set out on a different basis for quality control for the rights to negotiate purposes. The court already has sufficient powers to strike out claims that are unsound. Therefore, Labor thinks that the change is unnecessary.

Amendment (29) has been revised and the revised amendment (29) has been circulated, or it will be circulated. I am not sure if it has been at this point. My instructions are that if it has not then it can be. We might have to come back to amendment (29). We will deal with amendment (29) separately when everyone in the chamber has that amendment. It amends it to ensure that the correct wording is used throughout when we talk about bodies corporate. The revision does not make any material change to amendment (29) but, to give everyone a reasonable opportunity to have a look at it, I will deal with it separately.

I will recap where we are at. Opposition amendments will be dealt with in two parts. I will move amendment (29) straight after that. I would like to mention one of the arguments that the government might raise in response, which is that Labor does not support good faith bargaining. But we do; we just do not support the way it has been reflected in the legislation. I will head that criticism off first.

Good faith bargaining would be good to see in a lot of the Commonwealth legislation around mediation, but the government has reflected it in this legislation in such a way that it cannot be supported by Labor in these circumstances because we think it will not add much to the bargaining process; it may in fact slow it down even further. That goes to the same issues. I will not reiterate what was said in respect of schedule 1—that Labor is concerned that the amendments proposed by the government will add red tape. Labor has tried to ameliorate that with some of its amendments, at least in a spirit of cooperation. If they are not picked up, as we have indicated, we will seek to oppose schedule 2 because, on balance, we do not believe that it adds to the Native Title Tribunal process in a positive way. I still have amendment (29) to deal with.