Senate debates

Wednesday, 15 August 2007

Social Security and Other Legislation Amendment (Welfare Payment Reform) Bill 2007; Northern Territory National Emergency Response Bill 2007; Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Bill 2007; Appropriation (Northern Territory National Emergency Response) Bill (No. 1) 2007-2008; Appropriation (Northern Territory National Emergency Response) Bill (No. 2) 2007-2008

In Committee

10:16 am

Photo of Chris EvansChris Evans (WA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Hansard source

by leave—I move opposition amendments (2) to (6) and (9) and (10):

(2)    Clause 37, page 33 (line 21), omit “might”, substitute “must”.

(3)    Clause 49, page 42 (line 13), omit “might”, substitute “must”.

(4)    Clause 60, page 49 (lines 17 to 21), omit subclause 60(2), substitute:

        (2)    If the operation of this Part, or an act referred to in paragraphs (1)(b) or (c), would result in an acquisition of property, the Commonwealth is liable to pay compensation in ‘just terms’ to the person.

(5)    Clause 60, page 49 (lines 25 and 26), omit “such reasonable amount of compensation as the court determines”, substitute “compensation on ‘just terms’”.

(6)    Clause 61, page 50 (lines 1 to 14), omit the clause, substitute:

61  Amounts paid or payable

                 For the purposes of section 60, in determining just compensation that is payable in relation to land, the Court must take account of:

             (a)    any amounts of rent paid or payable in relation to the land under section 62; and

             (b)    any amounts of compensation paid or payable by the Commonwealth under the Special Purposes Leases Act or the Crown Lands Act in relation to the land; and

             (c)    any improvements to the land that are funded by the Commonwealth (whether before or after a lease is granted to, or all rights, titles or interests are vested in, the Commonwealth), including the construction of, or improvements to, any buildings or infrastructure on the land.

(9)    Clause 134, page 94 (lines 13 to 17), omit subclause 134(2), substitute:

        (2)    If the operation of this Act (other than Part 4) would result in an acquisition of property, the Commonwealth is liable to pay compensation on ‘just terms’ to the person.

(10)  Clause 134, page 94 (lines 21 and 22), omit “such reasonable amount of compensation as the court determines”, substitute: “compensation on ‘just terms’”.

These amendments go to the discussion we were having last night about the question of ‘just terms’ compensation. I will not go over all the ground we covered last night. Unfortunately, in our general discussion we ranged far and wide. This is a very important debate in terms of the bills. Both Senator Brown and I and a few others made contributions, and the minister responded. But, effectively, the argument comes down to the fact that in these bills the government does not provide for ‘just terms’ compensation. The government seeks to use an alternative term which causes concern among certainly senators and, I think, among Indigenous people that there is some attempt to water down what is seen as a constitutional right to ‘just terms’ compensation, although there is an argument about whether it applies in the Northern Territory et cetera. But I think it is broadly accepted, both by High Court interpretation and in the community, that people whose property rights are impacted by a government decision are entitled to ‘just terms’ compensation.

I think some people on the government side have difficulty coping with the fact that Indigenous people have property rights. The reality is that they do, and those property rights are going to be impacted by these measures. Labor is supporting that on the basis that the government has made a case that it is necessary to take control of the land and the property rights in order to facilitate the emergency improvements in housing and infrastructure, which will provide part of a response to addressing poverty and the conditions that allow child abuse and violence to occur. So we are supporting the intervention and the lease arrangements which interfere with those property rights.

But, in doing so, we are concerned to ensure that the rights of Indigenous people to ‘just terms’ compensation are not undermined. We think it is a fundamental principle of Australian society that the Commonwealth government should pay ‘just terms’ compensation for the acquisition of property from anyone. The fact that you are Indigenous should not deny you access to ‘just terms’ compensation. The government has run the argument that somehow the ‘reasonable compensation’ term they seek to use is interchangeable with ‘‘just terms’ compensation’, but they do not want to use it. Why don’t they want to use it? The answer yesterday was that the draftsman prefers the new term. As a senator, I prefer the old term. I had much more confidence and reassurance in the phrase ‘‘just terms’ compensation’ because of the way it has been interpreted over the years because of the broader understanding of it. I am strengthened in that concern by the submission from the Law Council of Australia. I have to weigh up, on one hand, the opinion of the Law Council of Australia, submitted to the parliament, and the minister’s assurance, on the other, that his draftsman has a different view, but that advice has not been tabled.

In paragraph 60 of their submission, the Law Council of Australia makes the point:

The Law Council notes that the legislation appears to shield the Commonwealth from its obligation to compensate the relevant Land Trust or pay rent, in circumstances where a lease is issued under section 31.

So they are asserting their concern that the Commonwealth is seeking to shield itself from its obligations. They also say that they think the legislation has been drafted to ‘pay as little direct compensation as possible’ but to ‘ensure the validity of the legislation’ in the event of a challenge. So the Law Council is expressing serious concern that the Commonwealth is attempting by its phraseology and the structure of the bill to prevent the full ‘just terms’ compensation rights being afforded to those affected by the takeover of their property.

Labor fundamentally thinks that is not right. We do not think that the parliament should take such a measure. The government’s explanation for its position quite frankly is unconvincing. We think that if the government is genuine about affording those peoples affected by interference in their property rights proper compensation then it ought to accept that the terms of ‘just terms’ compensation ought to apply rather than their alternative, which is a reasonable amount of compensation. I am assured there is a Federal Court decision et cetera that uses those terms, but, on the advice I have received, on the advice Senator Brown has received and on the advice of the Law Council, we still have concerns that that is not right and that ‘‘just terms’ compensation’ would be a much more satisfactory signal that we are not trying to undermine people’s property rights.

It is important that, even if the government have a preference for a different set of words, they also think about the perceptions. In my view, unless there is a very strong legal argument that somehow providing ‘just terms’ compensation undermines the integrity of the bill, then we ought to go with that rather than the alternative. A whole range of Indigenous groups and others interested in these issues have been concerned that this represents some sort of attempt to undermine proper compensation for the actions taken by the government under the powers granted by these bills.

If we are to breed confidence in the community that we are taking these actions on the basis of the desire to provide protection to Aboriginal children, not because of some other agenda in relation to land rights or the property rights of Indigenous people, then we ought to give them as much reassurance as possible. By passing these amendments, we think we will provide that reassurance and clarity, endorse a measure which will be much better understood and ensure that what the government says it wants to do is reflected in the legislation.


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