Monday, 14 September 2009
Native Title Amendment Bill 2009
Bill—by leave—taken as a whole.
I move Greens amendment (1) on sheet 5837:
(1) Schedule 6, page 52 (after line 5), after item 12, insert:
12A After section 61
61AA Presumptions relating to applications
(1) This section applies to an application for a native title determination brought under section 61 of the Act where the following circumstances exist:
(a) the native title claim group defined in the application applies for a determination of native title rights and interests where the rights and interests are found to be possessed under laws acknowledged and customs observed by the native title claim group;
(b) members of the native title claim group reasonably believe the laws and customs so acknowledged to be traditional;
(c) the members of the native title claim group, by their laws and customs have a connection with the land or waters the subject of the application;
(d) the members of the native title claim group reasonably believe that persons from whom one or more of them was descended, acknowledged and observed traditional laws and customs at sovereignty by which those persons had a connection with the land or waters the subject of the application.
(2) Where this section applies to an application it shall be presumed in the absence of proof to the contrary:
(a) that the laws acknowledged and customs observed by the native title claim group are traditional laws and customs acknowledged and observed at sovereignty;
(b) that the native title claim group has a connection with the land or waters by those traditional laws and customs;
(c) if the native title rights and interests asserted are capable of recognition by the common law then the facts necessary for the recognition of those rights and interests by the common law are established.
I indicated in my speech during the second reading debate that the Greens would be moving this amendment, which relates to the presumption of continuity or reverse onus of proof. I do not intend to take much time in the chamber, because I did argue my points in my speech during the second reading debate. While the Greens support the amendments in the bill, we do not believe they are going to make the substantive change that we want to see to native title.
I appreciate the Minister for Climate Change and Water’s comments about the need also for behavioural change. I accept that point. Given even that, I do not think we are going to see the major changes that a lot of people are seeking in native title. If we are going to see native title deliver the benefits that everyone has been expecting for the last 15 years from this legislation, we need to see substantive change, which is why we have put forward this amendment around the rebuttal of the presumption of continuity.
This amendment is one that Chief Justice Robert French, a past president of the National Native Title Tribunal, and many others have proposed in terms of delivering better outcomes for native title. This reverses the onus of proof so that native title holders do not have to prove continuity. There is a presumption of continuity. In fact, the state government and those opposing a claim have to prove otherwise.
I did articulate this argument in my speech during the second reading debate and I quoted extensively from the Australian Human Rights Commission, the Native Title Tribunal and Chief Justice French. The Chief Justice makes the point that the heavy burden on the principal parties to native title litigation is a result of these claims being proceedings conducted in the Federal Court. He says the resolution is to a degree constrained by the judicial framework, particularly its requirement that:
... applicants prove all elements necessary to make out the continuing existence of native title rights and interests within the meaning of the NTA and their recognition by the common law.
I think he argued very eloquently the need for some change to the Native Title Act. I commend this amendment to the chamber.
I believe that, if we are serious about delivering real outcomes from native title, we need to make substantive changes, not just the changes that the government is making. I am not critical of the changes that the government itself is making, but we do not believe they are going to make the substantive impact that we need if we are going to achieve real outcomes from native title. I ask the minister—and the minister referred to this in her summing up comments—is there a formal process of review in terms of the resources that are required and what is the time line for that review?
I will take advice on the second point. Whilst officers are giving me that advice, I will respond to Greens amendment (1) on sheet 5837. As I think you are aware, the government is not supporting this amendment. We recognise that this is based on a proposal by the Chief Justice. The amendment in effect grants a presumption of continuity of connection. My colleague the Attorney-General I think has said that he has an open mind to further legislative change that may facilitate resolution of native title claims; however, it is the Attorney-General’s and the government’s view that such a proposal would need to be the subject of broad community consultation before proceeding. Further, the Attorney would like to assess the impact of the changes contained in this bill before considering further changes which may improve the operation of the act. I will have to come back to you, Senator Siewert, as the officer appears to have left the chamber to check.
While the officer is being found, I will indicate the opposition’s attitude to Greens amendment (1) on sheet 5837. The opposition also oppose this amendment. I will say a couple of words about our attitude.
It was very instructive that the rationale of Senator Siewert’s advocacy of this amendment implied that a good outcome is that the applicant succeed. That was the unstated assumption in her whole contribution—if the applicant succeeds then the process has registered a good outcome and if the applicant fails then that is a bad outcome. That is an absolutely absurd way in which to approach contested proceedings.
We are dealing here with proceedings in which there is a dispute. There is a dispute between parties as to whether or not a particular claim falls within the ambit of the statute. The definition of a good process is not whether the applicant succeeds but rather whether the party which has a stronger legal and factual basis for their case succeeds. It sounded to me that Senator Siewert would regard any unsuccessful native title application as a failure if the claimant did not succeed. A legal process is only a failure if the wrong party wins. Senator Siewert would have it that it is only a good process if one side of the record wins—regardless of the facts, regardless of the merits, regardless of the expert evidence, regardless of any other consideration. That is why we have equality before the law, Senator Siewert: so people on both sides of the record, whether they be minority groups, companies, governments, individuals or quangos—wherever they lie in the power structure; everybody, on either side of the record—treated as equals. We do not go into these processes saying the process will not have worked unless a claimant gets their way, but that seemed to me to be the assumption behind your approach.
I have heard—if not from you, Senator Siewert, I have certainly heard this from your leader, Senator Brown, in relation to different legislation, for example antiterrorism legislation—how wicked it is to have the onus of proof reversed. I believe, and I am sure the minister shares my view, that as a general rule the reversal of the onus of proof in any contested proceedings, whether criminal or civil, is a bad principle. There are cases where exceptions need to be made to that principle, but in general I would hope that all legislators would approach the question of whether the onus of proof should be reversed by casting the onus of proof on those who make that argument, to show why there are powerful reasons why the onus of proof should be reversed. Usually, the reason the onus of proof is reversed, in any proceeding, whether it be a criminal proceeding or a civil proceeding, is that the party against whom the reversal of the onus takes place is in a better position than the adverse party to explain its position to the court. So the ordinary situation, whereby a person making an allegation or moving a court for a particular remedy needs to make out their case on the balance of probabilities in a civil proceeding like this, is displaced because the adverse party is better able to explain the situation than the party carrying the proceeding forward, and therefore in those circumstances it is not unfair to reverse the burden, to cast the burden of proof on the party in the better position to explain the situation.
But, in this case, in your amendment, this is the worst set of circumstances in which you would reverse an onus, because who would be the party in a native title claim best able to speak to the issue of continuity, best able to speak to the issues set forth in proposed section 61AA(1)? It would be the native title group themselves. It would be the Indigenous group themselves. They would be in a better position than anyone else to explain to the tribunal why it is that, historically, members of their tribe or their ethnic group have had the required degree of continuity with the land. So, far from being a situation in which a party is at a forensic disadvantage by the ordinary rules as to the onus of proof operating, this is the very case in which the party whom you seek to give the forensic advantage to does not need it. This is the very sort of case in which the party whom you would say should be the beneficiary of a reverse onus is in fact the party that should have the onus, because it is the party in the best position to put before the tribunal the relevant matters of fact, scientific evidence and so forth as to why there was continuity of connection with the land.
I have two propositions, Senator Siewert. First of all, in general reversals of the onus of proof are a bad idea. Secondly, in those cases where we make exceptions to that general rule, those exceptions are made in order to enable a party at a forensic disadvantage to overcome that disadvantage. But these parties not only are not at a forensic disadvantage; they are at a forensic advantage, because they are seeking to prove to the court something which is peculiarly within their own knowledge. So there is no case for creating an exception to the ordinary rule that the onus should lie upon the party seeking the relief from the tribunal at all. For those reasons the opposition joins the government in its opposition to this amendment.
I thought it might be useful to give Senator Siewert a brief response on the resourcing issue. I am advised that the funding of all parts of the native title system has historically been reviewed every four years and the last review occurred in 2008. The senator may be aware that, as a result of that, the government allocated an additional $55 million over four years to the native title system. It is the government’s expectation that there will be further such reviews but as yet the timing of those has not been determined.
I have a number of points I wish to make. I find it interesting that Senator Brandis thinks that he knows more about the native title system and its application than Chief Justice French who, as I said, was the president of the tribunal for four years. Beyond that, native title is not delivering for Aboriginal Australians, so we need to change the system. The cards are stacked against them and it is all very well to say, ‘They’re the ones that’—
It is not delivering for Aboriginal Australians. We need to change the system so that it actually starts delivering some benefits. We need to have a system that is fairer and not stacked against Aboriginal Australians, which is clearly where this system is at the moment. It is frustrating to the claimants. It is not delivering the outcomes that were promised when this legislation was first envisaged.
Senator Brandis was trying to imply that it is the poor government and not native title claimants against whom the cards are stacked. In fact, this system is stacked against native title claimants. The government holds all the cards in that it is both the party who granted the interest in the first place and it is also the one who holds vast amounts of records. It is quite clear that these changes are needed. These changes have been recommended by a series of people involved in native title. We are moving an amendment which exactly reflects the words that Justice French proposed. We did not pluck these out of the air. We used expert knowledge to look at what changes were needed to the native title system.
I would like to ask Senator Wong some questions about some comments she made in response to my first comments. The minister said that the Attorney-General has an open mind on further changes and, if I understood correctly, that the government wants to first assess the impact of these changes. I would like to know what processes will be used to assess these changes and what is the timeline for that assessment? On the issues relating to resources, I appreciate the comments about the ongoing review. However, this is a substantive change to the way mediation will be carried out through the Federal Court and I am wondering if that is being factored into the timelines for the review of resources, maybe taking it outside of what would normally be the review cycle?
In relation to the last issue, Senator Siewert, I do not think I can add anything further to the answer I gave. Historically, these reviews have been done quadrennially—every four years. Given the fact that last year that resulted in additional funding, we anticipate that a further review will occur, but its timing has not yet been determined. I am not sure I can add anything further to that.
In relation to monitoring the impact of changes, which I think you were also alluding to, I did indicate in my summing up—I think in response to points made by Senator Xenophon—that we hold the Native Title Consultative Forum three times a year. This is a forum which brings together stakeholders in the system. Obviously, the government will receive feedback about the operation of the system through that process as well as through the Attorney-General’s process of engagement with different stakeholders in the system.
I thank the minister for her answer. I am seeking to clarify this so that it is on the record. Should I understand, then, that the government does not intend to carry out a formal process of review—that it will be using its normal consultation processes? Is that a correct understanding of the answer?
Senator, I think you are conflating two issues. Perhaps because I am the minister representing I am misunderstanding you. I thought you asked questions about the review of funding and I gave you an answer about the funding issue. You then asked questions about monitoring the impact of the system and I gave you an answer which referred to the consultative forum which is already in place. I am not sure whether what you have just said is, in fact, an accurate reflection of what I have said. I have given you answers in relation to, as I understand it, a couple of distinct requests.
I am not trying to be difficult. The two issues are separate; I did ask about two separate issues. One was about resources. The other was following up comments the minister made in response to our proposed amendments—that is, that the Attorney-General had an open mind and that any changes would need to be subject to consultation, but that before making any other amendments the government would need to assess how these changes had proceeded. My question is—I am not trying to be difficult; I am just trying to get this on record—when the government is assessing the changes, will it be using its normal consultation processes, as the minister outlined, or will there be a separate consultation process?
Yes, the government will be using its existing consultation processes. No, the government is not ruling out any other consultation process. Obviously, that is a matter for the Attorney-General, but the reference I made in the summing up to the assessment of the impact of the changes also included looking at how the act operates in practice. That is a reasonable thing for the Attorney to want to do—to consider how these amendments operate in practice and to consider what effect they have had in practice before considering further changes.
I thank the minister. I am wondering whether the government are setting a timeline for an assessment of whether they are achieving their objectives based on when they think these changes will have been in practice long enough to enable such an assessment. The act has been in place for 15 years and a number of us argue it has not delivered enough benefits to the Aboriginal and Torres Strait Islander community. I am keen to know if a timeline has been put in place for an assessment to enable us to say, ‘Okay, these changes are being effective,’ or ‘No, they’re not.’ What is that timeline? Are we leaving it another 15 years? Are we doing it in three or five?
We were not in government for a significant part of that time, Senator Siewert. I do not have a date or a time line that I can advise you on. Obviously, the government is keen to ensure that the native title system works effectively, which is why these amendments have been brought forward. I am not able to give you a precise date on which the Attorney will sit down and look at this issue. I have given you an indication about his intentions. If I may say—and you may disagree—in the period that Mr McClelland has been Attorney-General, there clearly has been a willingness to consider these issues and to bring forward these amendments and to consult on them. I would ask that you take not comfort from that but perhaps take note of that approach. I am sure, Senator Siewert, if you remain in the Senate, you will continue to ensure that these matters are brought to the government’s attention.
That the amendment (Senator Siewert’s) be agreed to.
Bill agreed to.
Bill reported without amendment; report adopted.