Senate debates

Wednesday, 19 March 2014

Regulations and Determinations

Aboriginal Land Rights (Northern Territory) Amendment (Delegation) Regulation 2013; Disallowance

6:16 pm

Photo of Rachel SiewertRachel Siewert (WA, Australian Greens) Share this | Hansard source

From the outset I indicate that the Greens will be supporting this disallowance. I have looked at this issue, and I have talked to both the government and the land councils. I, too, acknowledge the presence of representatives of land councils in the gallery tonight.

We need to look at the context of these regulations. They are coming from the amendments that were made in the Howard government era that were clearly designed, I believe, to make it easier to remove the control of lands from the land councils. I think it was part of the amendments made to facilitate that process. I would suggest that that did not achieve its aim and that is why this regulation is being brought in. I am not suggesting evil intent by the current minister, but I am concerned about the precedent that this regulation would make, because it allows a minister to have quite extraordinary control. I do not think that that is appropriate when you are talking about areas that are under the responsibility of land councils and around decisions that they, rightly, should be making.

I listened to the minister very carefully—and I thank him for taking the trouble to explain to me his reasoning for this regulation—but I think there are better ways to achieve what he is trying to achieve. If it is just about the time frame for decision making, I think there are better ways to do that. Some of the loopholes—the gaps—in this regulation are, very properly, being raised by the Central Land Council and the Northern Land Council, although I have had other people and organisations raise their concerns about this with me. Concerns have been raised that, by allowing and facilitating Aboriginal corporations to have powers delegated to them through this mechanism, it may include non-traditional owners. In fact, as I understand it, there is not a requirement that the people involved are Aboriginal. That is a concern for me.

There is concern about the viability and sustainability of the corporations involved. I do not see how a land council, in making the decision around delegation following an application, could be assured about the financial viability and sustainability of a particular corporation. As I understand it, if that corporation folded, the powers would then default to the minister. I am concerned about those particular issues which, again, undermine the decision-making responsibilities of the land council.

Concern has been expressed to me about decisions being made that should properly be made by traditional owners, which I am very concerned about. The position has been put to me that there are some decisions, which are smaller decisions, that do not need to be made by traditional owners. With all due respect, I think that is a decision that should be made by the traditional owners. The traditional owners, therefore, should be in a position to make the decision about whether they need to make that decision—if you understand where I am coming from. It is my opinion—and it is an opinion that has been made strongly to me—that it is not up to non-traditional owners to decide who should be the decision makers.

There are also concerns around the responsibilities where, once they are delegated to a corporation, the land council still has certain financial responsibilities and responsibilities, potentially, for supporting the corporation to which these responsibilities have been delegated. Again, they then have no control over the decision in the first place. It seems to me that, while we are talking about trying to improve the decision-making process and get rid of some of the complexities, it could potentially lead to further complexities in decision making and further confusion.

I do understand that the government is trying to make some of these processes easier. It has been put to me that where other entities have applied for delegation of power it has been to set up new land councils. Where an application has been made and there has been serious discussion about it, the decision has been made and agreement reached. I do not think that facilitating what ultimately is a transfer of responsibilities back to the government through the minister is appropriate.

Let us go back to where this power originated. It originated from a Howard government agenda to get, for example, township leases in place. This was to allow outside development in townships, because the government was frustrated—other people were not necessarily frustrated—by traditional owners not allowing certain developments in their townships. This power came along, if people remember, with the whole process around income management and some other very draconian powers, including setting aside and exempting from the Racial Discrimination Act those measures at that time. When the ALP government came in, they wound back some of those draconian powers. If you remember rightly, there were no financial payments under those township lease arrangements. That has become more 'normalised' since that issue of payments was addressed.

We need to remember where this power came from. It was about gaining control of decision making over land. I am not suggesting that Minister Scullion is trying to concentrate that power. I am saying, however, that in the future these regulations could be used to enable more concentration of ministerial control over decisions that rightly sit with the traditional owners. The Greens will not support that further concentration of power in the executive. We believe that decision making should be with the traditional owners.

On behalf of the Greens, I very willing to say that, if there is another proposal which deals more appropriately with the time frame of decision making and with the questions and issues that have been raised by the land councils, we will be very happy to look at that alternative approach but we will not support the approach that is currently outlined in this regulation. We did raise very serious concerns when these amendments were first made, and we still hold those very serious concerns. I am not about to agree to a regulation that in fact concentrates those decision-making powers outside of the processes of land councils. Having said that, we will agree to look at an alternative approach. We are very happy to consider that, but we will not support this regulation. We will support the disallowance.


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