Guy Barnett (Tasmania, Liberal Party) Share this | Hansard source

I stand this afternoon as a Liberal senator and Deputy Chair of the Senate Standing Committee on Legal and Constitutional Affairs that reported on the Native Title Amendment Bill 2009 some weeks ago—in May 2009. I note that the bill was introduced on 19 March and its primary objective is to give the Federal Court of Australia a more central role in adjudicating native title claims. It invests in the Federal Court the authority to decide whether it, the National Native Title Tribunal or another individual or body should mediate a native title claim and it encourages and facilitates negotiated settlements of claims. It does a range of other technical and administrative things to speed up the process.

The committee received eight submissions and we had a public hearing in Sydney on 16 April 2009. Can I just place on record, certainly on behalf of the Liberal senators and the committee, my thanks to the committee secretariat for their work in assisting our committee in deliberating on this particular bill and delivering the report on time.

A very important issue that I have asked questions on and that has come up time and again at budget estimates is delays in sorting through and delivering on national native title claims. From 1994 to the end of 2008, 145 determinations were made under the act. The average time taken to finalise those was nearly six years when the application was by consent and seven years or longer when the outcome was litigated. That just shows you the concerns, issues and problems we have in dealing with these matters. At the time the report was handed down, about 475 claims were on foot in the system and over a quarter of those cases had been current for at least 10 years. It is estimated that the last of the cases currently active will not be concluded until 2035, another 26-odd years from now.

This is a very lengthy process and one that, frankly, we need to do a whole lot better at and improve. I am not saying anybody has it right or has the solutions. The objective behind this bill, to try and improve the process, is supported. I have asked at Senate estimates what processes and administrative arrangements are in place to sort through these concerns so that the process can be speeded up. Justice delayed is justice denied. That is a fact. We know it. It is not just an adage. With respect to determining national native title claims it is an absolute truism and it should be noted not just by us in this chamber but by the parliament and the broader public.

The National Native Title Tribunal have expressed a range of concerns regarding the bill and the amendments, and the Liberal senators have set out our concerns in our report. The tribunal’s concerns derive largely from the bill’s proposal to centralise the management of native title cases in the Federal Court. Along with my colleague Senator Trood, I have a lot of confidence in the Federal Court and their ability, executive judgment and management skills. But these amendments put so much discretion in the hands of the Federal Court that I think we need to watch this very carefully to see if the objectives that the government has are actually going to be met. I note that Senator Xenophon said, ‘Watch this space,’ in terms of the outcomes, because the process is, frankly, not working correctly. We need to do better.

Amendments were introduced in 2007 by the former government, the Howard government. The committee received no evidence as to whether or not those amendments were being properly and fully implemented. That is one concern that the Liberal senators noted in our report. The National Native Title Tribunal also argued to our committee that the bill’s passing could give rise to accountability issues through mediators operating outside the framework of a government institution and that it would see fewer resources available to fund flexible and innovative solutions in a timely manner. That was put on the Hansard record. The Chief Executive Officer of the Federal Court, Mr Warwick Soden, who appeared before the committee, assured the committee that the issue of resources was not a matter for the Federal Court. Well, we hope that that claim will be deemed and proven correct over time. But these are concerns that have been presented by the National Native Title Tribunal. One of the key outcomes, of course, is the appointment of mediators with respect to determining national native title cases.

The Liberal senators do support the aims and objectives of the amending bill, particularly encouraging of settlement by negotiation and building flexibility into the system, thereby maximising the chances of resolution. However, as I have indicated, there was no solid evidence as to how the 2007 amendments have operated, and that is a concern. The government have a job to do. The department should be able to respond and say, ‘These are the benefits of the 2007 amendments.’

The other key concern I have, and this seems to be a revolving consequence, a systemic problem that the government has, is the lack of consultation with key stakeholders. Some senators and the public may be surprised to know that there was entirely inadequate consultation with the National Native Title Tribunal prior to this bill being introduced. Why would that be? Why, when this is the key stakeholder entity, would the government plan to change their operations, their process and the way they do business without consulting them? We have referred to the lack of consultation in our report at page 21:

The Government states it used an evidence-based approach to policy development.

Well, hello! It does not really—not in this case. The report continues:

… we are concerned that little attention has been paid to the view of the NNTT—

the National Native Title Tribunal. Of course we are concerned as Liberal senators, and I think the entire public would be concerned. We continue:

In his evidence to the Committee, Mr Neate, the President of the Tribunal, stated that he ‘was advised of the announcement of the proposed changes immediately prior to them – the day before.’...‘But this was really advising me of what was about to be announced.’

So it was not really consultation, was it? It was: ‘This is the way we’re going to go, this is our approach, and we’re going to ram it down your throat whether you like it or not.’ That is not appropriate. That is inappropriate behaviour and practice for a government that says that it supports consultation. In this case, there has not been adequate consultation with the key stakeholder, the National Native Title Tribunal. The Attorney-General needs to take that on board and ensure that that does not ever happen again. They must, when developing substantive changes to the Native Title Act 1993 in the future, ensure proper consultation. They have impacted on the core mediation function of the National Native Title Tribunal without even consulting the president of that tribunal. Saying a day before, ‘This is what’s going to happen,’ is simply untenable. It is not on. Certainly our side of the parliament will hold the Attorney-General and the government to account. The lack of consultation seems to be becoming a systemic problem in how this government does business.

In turning to some of the other substantive matters, I note the committee expressed concern that:

... the amendments in Schedule 1 could result in the resolution of national native title claims in a less systemic way and that the process could become ad hoc, fragmented, less efficient and more expensive to the Commonwealth.

We noted the very good reputation of the Federal Court and their management skills and executive skills in implementing administrative and other operational arrangements, and we are willing to support these government amendments, but we will watch carefully to see how they are implemented, what benefits flow from them and whether the committee’s concerns will be vindicated. We expressed concern in our report that:

... private mediators may not possess qualifications and experience of practices, which might actually be important in ensuring their honesty, their integrity and their capacity to do the work required of them.

In the past we have had the mediation being undertaken and conducted by the National Native Title Tribunal and now it will be under the auspices of the Federal Court but with a contracting-out to individual mediators. The concerns that we have are exactly how this is going to operate, what the cost will be, its effectiveness and what outcomes will be delivered. These are fair questions and we will watch very carefully as the government proceeds with this reform. Our report continues:

The Bill is also unclear as to whether a Judge could appoint an organisation to mediate, resulting possibly in a person other than a Judge determining who would carry out the mediation.

Frankly, that is a concern, and I hope that these concerns that have been expressed will be answered and sorted out. The report states:

In summary, the appointment of private persons (and organisations) inevitably raises questions of accountability insofar as those persons and organisations operate outside the framework of a government institution with all of the relevant regulatory checks and balances.’

We will have a watching brief on this side of the chamber, and I know members of the public will have a watching brief on the delays in sorting out native title claims at the moment. They are totally unsatisfactory in their duration and need to be attended to. We do know that the Attorney-General has put on record his strong commitment to sorting through that. I and I know others on this side would like to see targets which show they want to sort this out, not in 26 years time, as is the current prognosis by the department and by others. That obviously has to be significantly reduced. We will be watching this through budget estimates. We put the department on notice to prepare for those sorts of questions when estimates arrives in some weeks time. We put it on notice that there will be further watching by this side of the chamber, and indeed by members of the public, so that we can sort through these very important native title determinations as quickly, efficiently and effectively as possible.