Senate debates

Monday, 11 September 2023


Legal and Constitutional Affairs Legislation Committee; Reference

6:44 pm

Photo of Tim AyresTim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Hansard source

I'm happy to withdraw. Senator Hanson has clearly already worked out what she thinks this inquiry should achieve. The second problem here is, of course, that it's not legally possible to achieve what's being sought. The core outcome that the motion seeks can't be achieved. Native title rights are sourced from the traditional laws and customs of Aboriginal and Torres Strait Islander people. They weren't just created by the Native Title Act. The High Court's decision in Mabo No. 2 in 1992 overturned the fiction that Australia was terra nullius—land belonging to no-one. It established native title as a fundamental right belonging to Aboriginal and Torres Strait Islander people in recognition of their traditional right to this land and their occupation of it for thousands of years.

As a decision of the High Court, it is not something that is open to this parliament to just abandon. It can't be achieved. It is part of the fabric of our common law. The common law actually matters in this place. Any attempt by the parliament to create a sunset date would completely ignore what native title rights are and how they're recognised by law in Australia.

Back in the 1990s, Australians were told that they would lose their backyards to native title. It wasn't true then, and it isn't true now. Native title offers traditional owners the opportunity to build a better future for themselves and for their children. It empowers them to step up and play a role in managing land and waters, safeguarding cultural heritage and creating employment for their communities. The motion pretends to care about economic reforms or economic outcomes for native title holders, but that is clearly contradicted by its call for a sunset date.

Each native title claim is different. Some are simpler and easier to resolve. Others involve complex issues that are outside of the applicant's control. There have now been 450 positive determinations of native title, and native title has been recognised to exist over 43 per cent of Australia. There are a further 139 claims for native title that have not yet been determined. Under Senator Hanson's proposition, in other words, that's at least 139 cases where native title claimants would be denied justice. I urge fellow senators to reject this ill-conceived and divisive proposal.


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