Monday, 11 September 2023
Legal and Constitutional Affairs Legislation Committee; Reference
I rise to speak in favour of this motion. This is the house of review. The Senate is the house of review. We've had numerous speakers tonight say that the Native Title Act is not perfect, so why can't we have an inquiry into it? Don't let perfection be the enemy of good, so let's have a look into it. We need to ask ourselves: What is the problem here? Personally, I've always had an issue with native title because it's got no inbuilt redundancy. Are we still going to talk about native title in a 100 years, 200 years? Or will this Native Title Act finally be put to bed?
While I concur with the original Mabo decision—that, if traditional owners can prove continuous association with the land then they are entitled to that land—I have a problem with the continual claims over unused council land or unused state land. I pay taxes. My constituents, fellow working Australians, also pay taxes. So to say they already don't have a claim over this land is ridiculous. There are parts of Redland Shire—the Waverton bowls club—and my old stomping ground in Sydney that have been basically given up to native title. There is no continuous association with land. For a very long time, the North Sydney Council used that particular bowling club as a bowling club. It was there for all the people of North Sydney, for other people in Sydney and for whoever may attend. So the idea we can now go and rewrite laws that say 'you have title over this' or 'you have title over that', when will it end? We are one country, and the fact that we have different laws for different races is actually a contravention of the International Convention on the Elimination of all Forms of Racial Discrimination.
I don't usually like to rely on foreign treaties to get my point across—and this also applies to the Voice, mind you, which also has no inbuilt redundancy. Once it's in the Constitution it will be there forever as well. Quite frankly, I think that if the Native Title Act doesn't actually have a sunset clause then it also falls into a breach of the International Convention on Elimination of All Forms of Racial Discrimination. I'll read out article 1.4 of that convention:
4. Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.
In other words, you cannot continue to have affirmative action, or any other action, once that standard of living has been improved.
I just want to raise this again: the 1992 decision—the Mabo decision—that High Court decision was sound, even though I must admit it was a close contest. It was 4-3 between High Court judges. But it was reasonable: continuous grounds. And yet that particular condition of the original Mabo decision has been watered down over the years, where we are getting claims over a large part of Australia. This isn't actually doing anything to help the Aboriginal people at all. The only people this is helping are the lawyers, because this is a lawyer's picnic for claims against the federal government, or the state government for that matter—or local councils. Of course the lawyers are basically fleecing the pockets of taxpayers here.
As usual, they use virtue-signalling to justify their extortion, but that's what we're looking at here. I think there does need to be an inquiry into this; I think it's time we called out the rorts. We also need to have a look at a section of the tax act: section 59 and, I think, 15 and 50, where land councils don't actually have to pay income tax on royalties and native title payments. Yet again, this cuts both ways. We always hear in this chamber about how the Aboriginals were dispossessed of their land and that somehow they've been discriminated against. But there have also been benefits brought into this country as well. I don't see why these measures have to continue indefinitely.
There can be an argument about whether we can wrap it up by 2025, but let's have the inquiry and let's investigate that. But to say that it's not workable, or that there's one thing wrong so therefore we won't have the inquiry, I totally disagree with that. We've seen too much of this under the Albanese government: not enough transparency, not enough scrutiny and not enough accountability. The whole point of the Senate is that it's the house of review. The Native Title Act is now 30 years old, and I think it's due for a revision. We have to ask ourselves this: when they introduced the Native Title Act back in, I think, 1993, or 94 or 92—whatever—was this the intended result? That today, 30 years on, we have claims over various parts of Australia that are only going to get tied up in the courts, indefinitely? It's a lawyer's picnic, and various bureaucratic agencies will be involved to deal with these native titles disputes.
Of course the problem with that is that these people aren't working on the front end, providing services to the regions where people do need help and where you can actually work on closing the gap. I'll leave it at that.