Trish Crossin (NT, Australian Labor Party) Share this | Hansard source

I rise to provide a contribution to the debate on the proposed changes to the Native Title Act contained in the Native Title Amendment Bill 2009, which was introduced into the House of Representatives in March this year. It predominantly seeks to amend the Native Title Act in one area only at this stage. I will make some further comments about why only one change is being made at this stage and respond to what Senator Siewert just said. That change gives the Federal Court of Australia a more central role in adjudicating the native title claims.

In summary, this bill invests the Federal Court with the authority to decide whether the Federal Court or the National Native Title Tribunal, or indeed any other body or individual, will mediate a native title claim, should that be necessary. It will further encourage and facilitate negotiated settlement of claims, allow the application of amended evidence rules for evidence given by the Aboriginal and Torres Strait Islander people to apply to native claims in certain circumstances and streamline provisions relating to the role of representative bodies.

The Senate Standing Committee on Legal and Constitutional Affairs, which I chaired, had this bill referred to it for inquiry and report in May, which is what it did. During the conduct of the inquiry, we received only eight submissions. I do not believe that was because of the short length of time the committee had to inquire; I think it was because of the nature of the changes. In relation to the nature of the changes, everybody agreed with them, except, unsurprisingly, the National Native Title Tribunal. We held a public hearing in Sydney on 16 April.

Schedule 1 of the bill would make a number of amendments to the native title mediation provisions in the Native Title Act 1993. The amendments, as I said earlier and as other speakers have said, give the Federal Court the role of managing all native title claims, including whether claims will be mediated by the court or referred to the National Native Title Tribunal or another court appointed individual or body for mediation.

The explanatory memorandum to the bill sets out the rationale for the amendments, which is to emphasise the importance of mediation and to draw on the court’s significant alternative dispute resolution experience to achieve more negotiated outcomes. Having one body actively control the direction of each case—rather than, as it is at the moment, having a number of bodies—with the assistance of case management powers means opportunities for resolution can be more easily identified. Parties that are behaving with less than good faith can also be more forcefully pulled into line. Where parties are deadlocked or unwilling to see common ground, the court can bring a discipline and focus on issues through the use of its case management powers to ensure that matters do not languish.

The bill repeals and replaces section 86B(5), which empowers the court to refer a matter for mediation at any stage in the proceedings if it believes that agreement on key facts can be reached. The new subsections would operate together with proposed new section 87C to better enable the court to direct cases to mediation, as well as to recall them and redirect them, possibly to a different mediator, if such a course is deemed helpful to resolution. Section 86 deals with the cessation of mediation. Currently there are two grounds upon which the court can order cessation: there being no likelihood of agreement being reached or further mediation being deemed unnecessary. In this bill a new ground is added under which the court could order cessation if it felt it appropriate to do so. The same subsection is also amended to add a power to make general orders in relation to the cessation of mediation as the court thinks fit.

As I said, the public inquiry received eight submissions. I have to say that, in relation to the Senate Standing Committee on Legal and Constitutional Affairs, eight submissions is pretty minimal. We normally get well in excess of that, but I do not think that is an indication that people were not interested; it is an indication that, with one exception in those eight submissions, the provisions of this bill were met with general approval. The most controversial changes the bill would introduce are those that remove the compulsory reference of matters for mediation from the NNTT to the Federal Court. Significantly, the primary body representing users of the native title system, the National Native Title Council, regarded the changes as uncontroversial.

The government’s proposals aim to address a significant backlog of claims for settlement. During the course of the inquiry we heard that 145 determinations were made between 1994, when the Native Title Act was passed, and the end of 2008. The average time taken to finalise these was about six years where the application was by consent or seven years where the outcome was litigated. The tribunal’s concerns derive largely from the bill’s proposal to centralise the management of native title cases in the court and hinge on the assertion that the amendments would not necessarily bring about a faster or a more efficient claim-settling process—a claim that we heard from Senator Trood who, even though the opposition say they are supporting this bill, still seems to want to defend the way the current process is happening.

The National Native Title Tribunal argued that the bill’s passage would give rise to accountability issues when mediators operate outside a governmental institution and would see further resources being available to fund flexible and innovative solutions in a timely manner. The NNTT also submitted that the amendments would encourage a system that was ad hoc, fragmented, less efficient and more expensive to the Commonwealth and that there could be confusion and lack of clarity about the respective powers and functions between the court and the tribunal, especially the extent of the court’s capacity to direct the tribunal to do things, to allocate tribunal members to mediate particular matters and to direct how mediation is to be conducted, which raise legal and resource issues.

We do not believe that that will be the case at all, because in 2007, when the Senate Standing Committee on Legal and Constitutional Affairs held an inquiry into the provisions of the Native Title Amendment Bill 2006—we were in opposition, of course, so the current opposition was chairing that committee—the minority report of the Australian Labor Party found that there were significant concerns expressed during the course of that inquiry about the expansion of the NNTT’s powers, particularly as most stakeholders did not have confidence in the NNTT’s capacity or expertise to conduct effective mediation. Evidence received by the committee during the course of that inquiry from native title rep bodies unanimously rejected the expansion of the NNTT’s mediation function, citing past statistics and experience. Like a majority of stakeholders, Labor—and, at the time, Green senators, I have to add—were not convinced that the NNTT was capable of exercising those expanded powers effectively or properly.

I am surprised to hear people like Senator Trood say that there was a lack of consultation about these changes. This has been the position of the Labor Party since 2006 when we handed down our views in the minority report of that inquiry, and certainly people who are in the field and dealing with native title day in and day out—rep bodies, the Native Title National Council, the NNTT and the Federal Court—would have known that that was in fact our position. So I do not accept that there was lack of consultation in relation to this change. Our view and our position in relation to the Federal Court handling the majority or, in fact, all of these matters and directing the mediation, has been on the public record for at least three years. The changes in this bill reflect those concerns and those conclusions. So this is not a new matter. This is not a matter that was suddenly decided upon this year or last year and changed by the federal Attorney-General. This is a matter that has been on the statute of this particular political party for a number of years and, in coming to government, we have augmented those changes.

The NNTT’s contention that the changes will not bring about improvements in the claims process was disputed by the Federal Court and is disputed by us. In his evidence to the inquiry, Registrar Soden told the committee that the change was:

... welcomed by the Court as it supports its long held view that results are obtained through a flexible and responsive approach to mediation. This view is based on the Court’s experience of the beneficial results of active case management by the Court in some native title proceedings.

Mr Soden took the view that the court was in the best position to decide which mechanism was in the best interest of each case, including the existing option of referring the case to the NNTT, and impressed the flexibility that the changed arrangements would bring to the management and resolution of cases. That is, of course, what we want to see. These changes have undergone appropriate and extensive consultation by the Attorney-General’s Department following the release of a discussion paper in December 2008, which elicited 30 submissions.

This takes me to some of the rebuttal that Senator Siewert mentioned about the amendments they have now put before us. I have not seen a copy of them, but they do take this bill further than where this government intends to go at this point in time because we have had a discussion paper—a very extensive discussion paper—about major reforms to the native title legislation put out there by Robert McClelland in December last year. He has spoken extensively around this country at conferences, at meetings, at various venues and organisations about what is in that discussion paper. The discussion paper has been out now for more than six or eight months for the general public and for the people involved in this area to provide input. When we had our hearing back in April, there were, in fact, 30 submissions in relation to that discussion paper at that point in time. Therefore, I am unsure of why we would want to elicit a further amendment from the Greens in relation to changes to the Native Title Act when we have a discussion paper out there that will, no doubt, look at some changes extensively when the minister is ready to take the results of that consultation and translate it into changes.

I want to put on record that we do value the input from the Australian Human Rights Commission. They made a very substantive submission to this inquiry covering a number of issues. For example, they recommended: consultation by the court with parties to a mediation; the regulation of a number of parties to a claim; the requirement for court orders to be appropriate; the application of the evidence act be applied to native title claims; funding of participants in a native title claim; and the expansion of ministerial discretion in appointing native title rep bodies. These are all dot points and summaries from some of the aspects of their submission, but they are worth reading. I am hopeful that the Human Rights Commission will send that in to the consultation process on the discussion document that is currently out there.

Unfortunately, they do warrant further examination but they were received after our committee’s public hearings and we were not able to hear in person from the Australian Human Rights Commission. We were not able to test their propositions on the Hansard record for incorporation in this report. No doubt we will get to them in the future. The views of the commission are worthy of further consideration.

There is one particular section that I want to make a specific comment, and that is the proposed amendments that remove the capacity of the NNTT to provide the court with voluntary regional mediation progress reports and regional work plans, if the president considers that such a report or work plan would assist the court in progressing proceedings. In it submission to the committee, the NNTT noted:

… if the Act is amended by proposed s 94N and the repeal of s 136G(3A), the Tribunal will lose the capacity to volunteer such reports, and the Court may be deprived of a valuable source of information for case management in regions where most or all claims have been referred to the Tribunal for mediation.

The explanatory memorandum states:

It is unnecessary for the Tribunal to provide the … reports … given the purpose of the amendments is to give the Court the overall control of native title claims.

While these amendments are considered by most to be minor or noncontroversial, the NNTT raised some concerns over how the changes would potentially impact on their ongoing operations. However, as Tony McAvoy from the National Native Title Council put it:

… the amendments that are proposed in this amendment bill are not controversial. They may make some small difference but they are not going to make any vast change in the way in which native title matters are dealt with. There is not going to be any rush of settlement of native title applications as a result of … these amendments.

The most significantly relatively simple amendment that could be made at this time to help achieve more negotiated native title outcomes in a more timely, effective and efficient fashion, was, in the view of the vast majority of the witnesses who addressed the issue, the burden of proof placed onto native title claimants to prove connection and continuity. The Australian Human Rights Commission argued in their submission:

It cannot be disputed that Indigenous peoples lived in Australia prior to colonisation and that the Crown was responsible for the dispossession of Indigenous peoples throughout Australia. It has also been acknowledged by governments over time through various policies, laws and statements of recognition, including the creation of land rights regimes and other mechanisms, that Indigenous peoples are the traditional owners of the land.

It is in this context that the Commission argues that it is unjust and inequitable to continue to place the demanding burden of proving all the elements required under the Native Title Act on the claimants.

While that may well be a valid position put to us by a number of witnesses, the committee deemed that it was outside the scope of our current inquiry. It was not related to the current legislative changes that we were specifically inquiring into. We were asked to specifically look at whether or not the actual application of the NNTT’s handling of claims should stay with them or be transferred to the Federal Court. We are talking not about the nature of the claims but about the actual administration of those claims. For the record, I want to make it clear that the legislation committee at the time deemed that that was outside the scope of its work.

In conclusion, I do draw people’s attention to the discussion paper by Minister McClelland. No doubt, we will be back in this chamber debating much more extensive and further changes to the Native Title Act once his response to that discussion paper is made available.