Monday, 14 September 2009
Native Title Amendment Bill 2009
While the officer is being found, I will indicate the opposition’s attitude to Greens amendment (1) on sheet 5837. The opposition also oppose this amendment. I will say a couple of words about our attitude.
It was very instructive that the rationale of Senator Siewert’s advocacy of this amendment implied that a good outcome is that the applicant succeed. That was the unstated assumption in her whole contribution—if the applicant succeeds then the process has registered a good outcome and if the applicant fails then that is a bad outcome. That is an absolutely absurd way in which to approach contested proceedings.
We are dealing here with proceedings in which there is a dispute. There is a dispute between parties as to whether or not a particular claim falls within the ambit of the statute. The definition of a good process is not whether the applicant succeeds but rather whether the party which has a stronger legal and factual basis for their case succeeds. It sounded to me that Senator Siewert would regard any unsuccessful native title application as a failure if the claimant did not succeed. A legal process is only a failure if the wrong party wins. Senator Siewert would have it that it is only a good process if one side of the record wins—regardless of the facts, regardless of the merits, regardless of the expert evidence, regardless of any other consideration. That is why we have equality before the law, Senator Siewert: so people on both sides of the record, whether they be minority groups, companies, governments, individuals or quangos—wherever they lie in the power structure; everybody, on either side of the record—treated as equals. We do not go into these processes saying the process will not have worked unless a claimant gets their way, but that seemed to me to be the assumption behind your approach.
I have heard—if not from you, Senator Siewert, I have certainly heard this from your leader, Senator Brown, in relation to different legislation, for example antiterrorism legislation—how wicked it is to have the onus of proof reversed. I believe, and I am sure the minister shares my view, that as a general rule the reversal of the onus of proof in any contested proceedings, whether criminal or civil, is a bad principle. There are cases where exceptions need to be made to that principle, but in general I would hope that all legislators would approach the question of whether the onus of proof should be reversed by casting the onus of proof on those who make that argument, to show why there are powerful reasons why the onus of proof should be reversed. Usually, the reason the onus of proof is reversed, in any proceeding, whether it be a criminal proceeding or a civil proceeding, is that the party against whom the reversal of the onus takes place is in a better position than the adverse party to explain its position to the court. So the ordinary situation, whereby a person making an allegation or moving a court for a particular remedy needs to make out their case on the balance of probabilities in a civil proceeding like this, is displaced because the adverse party is better able to explain the situation than the party carrying the proceeding forward, and therefore in those circumstances it is not unfair to reverse the burden, to cast the burden of proof on the party in the better position to explain the situation.
But, in this case, in your amendment, this is the worst set of circumstances in which you would reverse an onus, because who would be the party in a native title claim best able to speak to the issue of continuity, best able to speak to the issues set forth in proposed section 61AA(1)? It would be the native title group themselves. It would be the Indigenous group themselves. They would be in a better position than anyone else to explain to the tribunal why it is that, historically, members of their tribe or their ethnic group have had the required degree of continuity with the land. So, far from being a situation in which a party is at a forensic disadvantage by the ordinary rules as to the onus of proof operating, this is the very case in which the party whom you seek to give the forensic advantage to does not need it. This is the very sort of case in which the party whom you would say should be the beneficiary of a reverse onus is in fact the party that should have the onus, because it is the party in the best position to put before the tribunal the relevant matters of fact, scientific evidence and so forth as to why there was continuity of connection with the land.
I have two propositions, Senator Siewert. First of all, in general reversals of the onus of proof are a bad idea. Secondly, in those cases where we make exceptions to that general rule, those exceptions are made in order to enable a party at a forensic disadvantage to overcome that disadvantage. But these parties not only are not at a forensic disadvantage; they are at a forensic advantage, because they are seeking to prove to the court something which is peculiarly within their own knowledge. So there is no case for creating an exception to the ordinary rule that the onus should lie upon the party seeking the relief from the tribunal at all. For those reasons the opposition joins the government in its opposition to this amendment.