Senate debates

Wednesday, 19 March 2014

Regulations and Determinations

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

6:26 pm

Photo of Nick XenophonNick Xenophon (SA, Independent) Share this | Hansard source

Can I indicate that I take a contrary position. I will not support the disallowance. I have listened very carefully to what the contributors have put in relation to this debate, and I note particularly the comments made by Senator Siewert in relation to looking at alternative approaches. I have approached this issue by looking at some of the procedural aspects of the regulations, which I thought had some merit, but I do acknowledge the contributions made by other senators.

The Northern Territory Land Rights Act already includes specific provisions that enable an Aboriginal corporation to apply to a land council to request a delegation of some of the council's powers. What these regulations do is introduce a specific process and a time line for these applications. I have heard the criticisms about that time line, which I will address shortly. However, without these regulations, the provisions in the act cannot be practically effective, because if there is no time frame specified to deal with a request for delegation then arguably they are meaningless.

I note that these regulations do not change the intent or application of the act. They, as I understand it from the government's point of view, improve its mechanics. If there is to be a debate about the intent of the legislation—what was passed by the Howard government—then so be it, but I am looking at the way that the mechanics of these regulations work. The regulations themselves make provisions for the type of information that corporations should provide and that land councils should consider so that due diligence takes place. The regulations also place a three-month time limit for considering applications, which I note has been heavily criticised, but, importantly, the regulations allow councils to apply for an extension on this limit.

I think part of this debate seems to centre around whether the delegation of powers should exist in the first place. I think that, in appropriate circumstances, there ought to be a delegation. Where there is an adequate organisational capability or when there is a majority of voice in a corporation then there should be a capacity for councils to delegate. This can provide traditional owners with greater control and autonomy over their land and the ability to maximise the economic benefit from it. But this is not what this debate is about today. The provisions for delegation exist in the bill and, as such, should be operating properly. I believe these regulations achieve that aim. In the absence of these regulations, the provision is meaningless.

I note the position of the opposition and the Greens, and I respect that, but I believe that the current situation allows applications to remain in limbo indefinitely. I do not think that is desirable. I think some would say that it is pointless and, I am sure, distressing for those members of the corporation who have made the application. When I received a briefing from the minister in relation to this just a couple of days ago he said that there was an application from the Mangarayi Aboriginal Corporation—I have probably pronounced that wrongly and I apologise—to the Northern Land Council back in 2010 that has still not been decided on. So, if no decision is made, then there are no avenues of appeal. Instead, the corporations will have to go through an expensive and lengthy legal battle to even get a decision to appeal—via, as I understand it, a lengthy and costly judicial review process—and I do not think that is desirable.

I see this as being about procedural fairness, although I support the broader issues behind it. I am encouraged by Senator Siewert's comments that the Australian Greens will look at dealing with some of the issues that have been raised by the minister, and I think that might provide a middle ground or a way forward in relation to that. But, on balance, I am not convinced to support this disallowance.


No comments