Wednesday, 19 March 2014
Regulations and Determinations
Aboriginal Land Rights (Northern Territory) Amendment (Delegation) Regulation 2013; Disallowance
At the request of Senator McLucas, I move:
That the Aboriginal Land Rights (Northern Territory) Amendment (Delegation) Regulation 2013, as contained in Select Legislative Instrument 2013 No. 272 and made under the Aboriginal Land Rights (Northern Territory) Act 1976, be disallowed [F2013L02122].
This will lead into the debate we are having about a disallowance motion for a range of regulations that are being put forward by the minister. Before I commence, I want to acknowledge—and draw the attention of the Senate to—the Deputy Chair and the CEO of the Northern Land Council and the Chair of the Central Land Council, who are in the gallery and are sharing this discussion with us today.
The opposition will be seeking to disallow these motions. We believe that in this area—a most sensitive area of activity that has been regulated and looked at by a series of governments and inquiries over so many years—there are two key points which I think we need to enshrine in all actions we take in this area. One of course must be effective, responsive and engaging consultation with the people who are involved and who will be affected by any form of change. We have heard this so many times. Commitments have been made by a series of governments that where there is any change to Aboriginal legislation there must be—there has to be—effective consultation. We put forward that that effective consultation has not taken place in this case.
We know that the proposal by government is to make significant changes in the operation of Aboriginal land councils; to widen scope, to look at a delegation, to corporations, of a range of core issues. This was actually placed in legislation in 2006 but the way to move it forward is through regulation.
You and I remember, Mr Acting Deputy President, working on the regulations and ordinance committee and putting forward the absolute assurance that there must be effective consultation for all legislation. We do not believe that there has been effective consultation with the people most affected in the development of these particular regulations.
Telling people about it, asking for their opinion by mail, does not constitute consultation. What constitutes consultation—and we know this—is working closely with the people, working through the impact, working through the process, to ensure that there is absolute understanding and, where possible, agreement. We understand that consultation does not always mean agreement, but it certainly means respect for concerns that have been raised, and particularly respect for concerns that have been raised about the effective operations of the business. The business that is currently being done by the land councils makes sure that Aboriginal people have a true sense of ownership of their land and of any development that is taking place on their land.
The process that we have before you has had considerable response. When the letter was sent out to the corporations, naturally they responded; they always do. When issues are put before the councils they always respond to ensure that the concerns of their people are heard. There have been significant concerns about the impact that these regulations would have in ensuring that there is effective scrutiny and accountability for any decisions that are made.
The second point, leading on from effective consultation, must be ensuring that there is transparency and accountability and consistency in any kind of action that is taken.
In this place, we have had the real pleasure of working with land councils over a number of years. Through the Senate estimates process, we have had the opportunity to work with land councils in relation to their annual reports and, on many occasions, to have land council members appear before us. In fact in recent times, since we have had the dedicated day looking at Aboriginal and Torres Strait Islander issues—which I think must be enshrined in our process in this place—we have on a number of occasions had council members appear before our committee to work through issues of concern that have been raised by senators.
One of the concerns that has been put on the record by the councils—who will be impacted by these regulations—is that this degree of accountability and scrutiny will not translate to any of the processes that are devolved to corporations. And we have yet to see any kind of process put forward by the government that tells us how that accountability and transparency will work. We know that, consistently, areas relating to Aboriginal land, Aboriginal wealth and Aboriginal income are of interest to those this place, but also and most importantly of interest to the traditional owners—to the people whom these processes are supposed to support.
I know my friend Senator Peris will take this forward with her local knowledge of the area, and she will say much more about the concerns that people in that area have. But I really just wanted to make this point about accountability and transparency. But I also wanted to mention one of the more stupid aspects of these regulations, which is the time frame that is imposed on the regulations in terms of process. A three-month time frame is actually put—
Minister, you will have your go—as you always do. The process outlined in the regulations includes a three-month turnaround for decisions which must involve careful scrutiny of the proposal for a corporation to take over key functions—and that scrutiny would be expected and must occur. But this is not a workable expectation: Aboriginal land councils have a clear schedule of meeting times, which we all know; when and where these councils meet is public and transparent. Their people know when they meet; we know when they meet. Not one of them would be able to turn around a decision of this nature within a three-month period. To put that forward in this regulation just does not make it workable. And the thing that comes behind that, of course, is that if there is not a decision made—and a response given back—by one of the land councils about a proposed devolution of authority to a corporation, the expectation is that the minister will step in immediately.
I have heard the current minister speak many times, both as a minister in the previous government and as the shadow minister for the last six years. He has told us consistently—in this place, in meetings and in regional meetings—about the importance of having effective ownership by Aboriginal people of their decisions. That is a statement by which he consistently stands. I agree with him. I respect the position he has taken. But the proposal in terms of these regulations does not reflect that position.
If we are going to be—as we always agree we should, here in this place—respectful of Aboriginal land councils, and if we were acknowledging their work and their place in history, we will ensure that any expectation from the government or the parliament will include the opportunity for them to do their job. That has always been the process. The regulations we have before us in this chamber do not allow that to happen. I have read here about the processes that the minister is trying to put in place. In short, if the aim is to engage the councils and give them more flexibility, the best and most effective way forward—in fact, the only way forward—is to let the land councils see that they are partners in this process, and not being imposed upon by government. That has consistently been the argument that we have put up.
In terms of the process, we believe there is much more discussion to be had. No-one believes that everything should be locked in stone, and that no changes should be made. That has never been the position of the opposition. I believe that there is a willingness to maintain the discussion around further changes and further ways to ensure that there is the best possible outcome for the traditional owners of the land—which was the intent of the original legislation. So, we are not closing down the discussion; what we are saying is that the most effective way to move the discussion forward is to ensure that due process is put in place. The regulations as they are now drafted do not allow that due process.
We need to ensure that we have effective consultation, and an effective response to the issues that have been raised by the councils themselves about why they are uncomfortable with what has been put forward. We need to ensure that that consultation is there, that it is open, and that it is as engaging as possible. And I would suggest that it involves this place, Minister—not just outside. I suggest that it involves all of us in this place—because you know more than anyone else the interest and the commitment that people in this place have to ensuring that we have effective services and effective accountability in Aboriginal communities. These regulations do not provide that. In fact, there is a real danger that if these regulations are pushed through, it will further alienate the people who are most deserving of being consulted.
I know Senator Peris and Senator Siewert will have more to say, and so I will leave it at that. The opposition will not be supporting these regulations.
I rise in support of this disallowance motion, as it has direct relevance to the Northern Territory. As my colleague did earlier, I would like to acknowledge in the gallery today Northern Land Council members, Mr Sammy Bush-Blanasi and Mr John Daly, and deputy chair and CEO, Mr Joe Morrison; and also Central Land Council chairman, Maurie Japarta Ryan.
I support and applaud the very important role that the land councils play in representing Aboriginal people. We have four land councils in the Northern Territory: the Northern Land Council, the Central Land Council, the Tiwi Land Council and Anindilyakwa Land Council. They represent the traditional owners of the land and they also represent the concerns of Aboriginal people on many fronts. Aboriginal people have an extremely important connection to the land. The land owns Aboriginal people, not the other way around. Every aspect of our lives is connected to the land. We have a very deep spiritual connection to it. We have, in fact, 40,000 years of an inherited responsibility to the land and the sea. Aboriginal law and spirituality are intertwined in the land. This forms our culture and sovereignty. The health of the land and water is central to our culture. The land councils in the Northern Territory protect this connection but they also understand the importance of jobs and economic opportunity for our people. It is terrific that representatives of the land councils are here today, because this is a very important issue.
The essential reason that this disallowance motion exists is the lack of consultation from the Minister for Indigenous Affairs. The minister simply did not properly consult with affected stakeholders, in particular the land councils of the Northern Territory, when he amended the regulations that this motion seeks to disallow. Late last year, on December 12, the Minister for Indigenous Affairs tabled an amendment, the Aboriginal Land Rights (Northern Territory) Amendment (Delegation) Regulation 2013. This regulation directly affects land councils in the Northern Territory and I reiterate that the minister did not properly consult with them. The land councils do not support the regulation—and I will explain in a minute why the land councils are opposed—but what land councils and all Aboriginal people are sick of is, when changes that directly affect them are being made in Canberra, Aboriginal people do not have their say.
That is what has occurred here: no real or meaningful and respectful consultation process and no formal opportunity to comment on the changes that directly affect them have taken place. Nothing upsets Aboriginal people more than being ignored on matters that affect them, and being ignored by the minister who is meant to be responsible for Indigenous affairs is especially wrong. The Prime Minister says that he will be the Prime Minister for Aboriginal people, yet this government makes changes to Aboriginal rights regulations without properly consulting with Aboriginal people. That is not right.
This is not the first time we have seen this approach. Last month, without any consultation, $10 million was scrapped from Machado–Joseph Foundation. There was outrage, even from members of the Liberal Country Party of the Northern Territory. Party members were calling the decision disgraceful and disgusting, but that is what happens when you do not talk to the people when making decisions that affect their lives or without telling them. The minister, to his credit, back flipped and has restored some of the funding, but the damage has already been done. I hope that the minister now understands that Aboriginal people do not like having decisions thrust upon them.
I will now explain why the land councils are opposed to these regulations. First and foremost, they impose new requirements on the content of applications for delegation for Aboriginal corporations. The regulation seeks to impose criteria by which land councils would be required to consider delegation applications. The changes also impose a three-month time limit for land councils to consider an application for delegation on an Aboriginal corporation before it may be referred by the Aboriginal corporation to the minister for approval. If the proposed changes are not allowed, land councils will not receive adequate information so as to make an informed decision as to whether a delegation should take place. This will be subject to an unreasonable time frame for the consideration of potentially major and permanent transfer of core land council functions.
The two biggest land councils, the Northern Land Council and the Central Land Council, have submitted a joint submission opposing this regulation. It is a very comprehensive submission and it supports this disallowance today. I want to read out an extract from the submission that outlines their objections. The submission says:
The regulations require a Land Council, to respond to an application for delegation of functions within 3 months, failing which the Land Council is deemed to have refused such that the Minister may force a delegation. The response time for adequate consideration of such a request must accommodate both the investigation and decision making processes of the Land Council. During the period after an application has been received the Land Council will need to:
The period of 3 months is utterly inadequate as the Land Councils decision will need to be made by the Council at one of its Full Council meetings (triannual for the CLC, and biannual for the NLC) following the completion of the above investigation and consultations. Further, the regulations fail to adequately prescribe how the proposed area in which the Aboriginal corporation wishes to exercise Land Council functions is to be described in the application. Precision is needed in this regard to provide the Land Council with an accurate basis for determining whether the corporation, membership complies with eligibility requirements, and to look at whether the area provides logical administrative boundaries for the delegated functions. Precision is also needed, because the Land Councils will need to be certain about which body, it or the delegate, may exercise functions over a given area, and third parties need certainty about who they should be dealing with.
It is plain, from experience regarding applications to create new Land Councils, that the period of 3 months to consider a delegate corporation's 28A application is manifestly insufficient.
As you can see, their objections are very comprehensive, very considered and very well founded.
The Anindilyakwa Land Council from Groote Eylandt have also written to the Minister for Indigenous Affairs opposing this regulation, and I will quickly read an extract from their letter. They say:
We have a grave fear that even the threat of an application for delegation, by maverick groups and/or 'carpetbagger' advisors purporting to act on their behalf, will lead to intra-community disputes and even possibly litigation, which the ALC, and possibly you, Minister, would have to defend at great cost to us all.
We respectfully request you give consideration to our grave concerns, to avoid these many serious unintended consequences.
There has been absolutely no consideration of their grave concerns by this minister. I am also advised that members of the Tiwi Land Council share the concerns of the other three land councils. So the land councils' opposition to this amendment from the minister is clear. Not only is the rationale behind their objections very clear, but they are also upset by the fact that they have been ignored. I also understand that the Northern Land Council have found that their dealings with the minister on this matter have been extremely unsatisfactory. That is extremely concerning, not just in relation to this issue, but in relation to the government's approach to land councils and to Aboriginal people. It gives me no pleasure that the minister and the land councils are at loggerheads because, for the good of the Northern Territory it is very important that the Commonwealth government's Minister for Indigenous Affairs has a good relationship with the land councils.
I want to quote from a speech by the now Minister for Indigenous Affairs that was given at a Northern Land Council meeting in Timber Creek in May last year when he was in opposition. He was talking about potential changes to the Aboriginal Land Rights Act and said:
I do not intend to force this on anyone. I want to support the Land Councils and I want you to be a part of it. I want Land Council's to be strong.
They are such beautiful words, but they were just words. They remind me of the late Dr Yunupingu's famous lyrics:
All those talking politicians
Words are easy, words are cheap
Much cheaper than our priceless land.
The minister concluded his speech to the Northern Land Council by saying:
Whichever way it goes my friends, whether we win the election or not, whether I become the Minister for Aboriginal and Torres Strait Islander Affairs, I will always be on your side and I will always want to work with you.
If this disallowance is supported, then the Minister for Indigenous Affairs should go back to the drawing board and begin talking to Aboriginal people, in full consultation with land councils, in an honest and open manner. He should do what he said he would do before the election.
I support the disallowance, and I call on both the Prime Minister and the Minister for Indigenous Affairs to ensure that, next time they intend to make changes that affect Aboriginal people, they do the right thing and have the decency to properly consult with them. I thank the land councils for coming here today and for the work they continue to do in protecting our land and for standing up for Aboriginal Territorians.
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.
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.
As other speakers have done, I would like to acknowledge my good friends in the gallery from the Northern Land Council and from the Central Land Council. But, more importantly, I would like to acknowledge the traditional owners of the Northern Territory, which is whom this debate should be about—not their representatives, not the bodies that represent them. I am here, as Senator Peris should be here, to represent the interests of my constituents. That constituency is part of the fabric of the Commonwealth government, within which the Northern Land Council is a statutory body. My responsibility as minister is to ensure that you carry out your functions in a way that is lawful and provides procedural fairness to your constituents, whether you do so or not. That is my role in this.
It was with some sadness that I heard what Senator Siewert said. I would like to be cranky with you but we have had a very long relationship. I would like to sit down and explain a number of things, Senator Siewert—a couple of things, just technical changes. This change was made in 2006. It was not associated with the income management process; it was done well before that—
Senator Siewert interjecting—
Just in terms of a correction, Senator. This regulation—and I do not have time to just make up regulation, to just slip in here and throw a few regulations around—was the subject of a significant consultation process with all the land councils and with Aboriginal corporations. There were a series of consultations, and the reason those consultations were had was that there was mischief afoot. Certainly, the land councils in that consultation had indicated a whole range of things, and in response to that we made some changes. On the basis of that very clear advice, we put the regulations forward.
Now, those on the other side seem to think this is an opportunity to talk about section 28. That is actually our law. That is our law now and that is the law which the Northern Land Council, which is a servant of this, being a Commonwealth statutory authority, needs to respect. Section 28, effectively, is land rights plus. It is a law that allows people to make some significant decisions themselves on their own land. It is real land rights. That is not just a statement. I have no interest in this. None of these processes actually provide the minister with any decision-making power. It is there, as always, as a default position, but we do not get any land. I genuinely have no interest in who is speaking for whose country; that is entirely a matter for traditional owners. But there was a fair bit of mischief going on.
If I could just use a short anecdote about a friend of mine who would be well known to Maurie, perhaps not to Les. There was a guy called Herman Malbunka—he has passed away, bless his soul—who was a good friend of mine. I can remember him sitting on the side of his road, and it is a road that goes past Hermannsburg over to the west. He used to think, 'People have to get jerry cans to get all the way. Wouldn't it be good if I could have a service station here?' I said, 'Why don't you get a service station, apply to the land council?' He said, 'I've been trying.' I said, 'How long have you been trying, mate?' 'Oh, I don't know, Senator; maybe for four or five years.' I said, 'Oh, okay.' He said, 'My vision is, with the least money I can get from this, I want to buy cattle, because I'm a cattleman.' He was always proud of wearing his big belt buckle, and his sons were cattlemen. He said, 'That's our future, because I want to buy cattle and put it on the rest of my land and this is how I can do it.'
But the process of the land council—and it is no reflection, Maurie Ryan, on the Central Land Council; it happened a long time ago. It is more of a reflection on the sorts of things that Senator Peris brought up. They only meet every now and again. It is a terribly cumbersome process. Wherever I go, Senator Peris—and, after you start travelling a little bit more, you will find this—almost everyone says, 'Look, I'd really like to have a faster process or something where we can actually make a decision, where we can make a decision in our own lunchtime,' because sometimes in a business sense that is really important: 'I want to make a decision today.' 'I know—I'm sorry; you're going to have to wait a long time.' And that is in circumstances where the land council is going to cooperate.
So why do we actually need this regulation? First of all, despite what has been said about the consultation, we consulted considerably. We had the consultations start in November 2013. We introduced this last year, in December. I spoke at length to the full land council, and this is the important point—and thank you very much, Senator Peris; I omitted to find my speech and you managed to quote for me the exact part I wanted to quote, which was: 'I'm here; I'm talking about section 28.' If you had read the remainder of the speech, you would have seen that section 28 was the preference to what seemed to be the only alternative, which was an entirely new land council. I spoke to the Central Land Council. I spoke to the entire Central Land Council. In Tennant Creek—because I spoke about it twice to the Northern Land Council—there were a whole range of questions. The second time I spoke to it, which was in Darwin, to the entire Central Land Council—the first minister to have appeared before them, I understand—there were a few questions of interest, but none of the rank and file were saying, 'This is a bad thing.' I speak to the rank and file and I have to say it is pretty interesting. Maurie Ryan has not said to me that he has spoken to the land council and, 'This is the view of the land council.' Nor have the Northern Land Council. You did not have a resolution of the meeting that I was at that said, 'Suddenly, section 28A is odious to our organisation,' and you are empowered as the executive to come down to Canberra and say so and make a submission because you would be the only ones who knew about it. Your constituency knew nothing about it and know nothing about it today.
On a point of order, Madam Acting Deputy President: I ask you to bring the minister's attention to the fact that he should be addressing the chair, not the people in the gallery. I do not think that is acceptable.
In consultation with the land councils, one of the things we have said—I note that Senator Peris read out that bit about codification—is that we would provide, as part of this regulation, a series of things that the people making the application had to have in it. It is not difficult. It includes things such as the names of the corporation's members, evidence of the corporation, why the corporation seeks delegation, why the corporation selected part of the area of the land council, description of the consultation, the traditional owners of the land, description of the area and so on. That was exactly what the land councils wanted us to do. That was what was said at the consultations.
We all need to understand—and I am sure those in the Labor Party know exactly what is going on here—that this is a deliberate decision. The Labor Party do not like section 28A for some reason. The fact that it is a law does not seem to be of any material concern to them. They do not like it, so they are going to find a way around it. The thing is that the law is applied so traditional owners can get procedural fairness. This is about procedural fairness.
The good senator opposite indicated that the minister would of course intervene if the process took more than three months. But, as has been mentioned before, there was an application made on 4 August 2010. It is the only one. Some 1,324 days later—for those who need the translation, that is three years, seven months and 15 days—there has been no response. The other thing that is interesting about the fact that they have not responded is that the minister got a copy. The Labor minister got a copy on the same day! Where is the intervention to achieve procedural fairness for the traditional owners? Where was she? Where was Labor? Where were they when they should have been intervening on behalf of traditional owners to ensure their access to justice and their access to procedural fairness? They were nowhere.
This is not a debate, Senator Peris, about land councils. This is a debate about access to justice and procedural fairness. If you want to change the act, bring a bill into this place and do so. That is how it works. If you want to give traditional owners access to something—this was more than three years! Quite clearly there is a mischief in that. So we thought, 'Maybe we should introduce some regulations.' We went to see the land councils and they said, 'Three months is not enough.' We said, 'No worries—that is understandable.' In a normal administrative process, if after three months you needed any longer, you would have to do something. One would have thought that, in all that time, they would have acknowledged the letter—they have not. So we added a ministerial discretion for an extension if one is required, as is normal.
It is just a nonsense to say, 'Three months—that is not long enough.' Of course sometimes it is not long enough. In some cases it would be long enough. As a consequence of the consultations, we have said that, if the letter to the land council does not meet all the provisions of the act, you must refuse it. We put up a much higher bar because we listened to what the land councils had to say to us. When we consulted, it was not just the department going out with me and talking to all the land councils. There was a comprehensive official consultation process.
Two things came out of that consultation process. First of all, there needed to be some discretion in case the process took too long and, second, we needed to codify things. So here we are in the Senate having created a regulation that allows traditional owners to make the decision. In addition to consulting with the land council members, I have, for a long period of time, been talking to my real constituents—the traditional owners on the lands. They see this as a benefit. In fact I was speaking recently to Galarrwuy Yunupingu. He is not the father of land rights but he had a fair bit to do with it. He said, 'We always need to move towards people on country having more say about their country'—and that is exactly what this does. It allows them to have more say about their country. I am sorry but I do not have any letters from land councils to read out, Senator Peris, because I have been talking to your constituents rather than the land councils.
I have a letter here from the Rirratjingu Aboriginal Corporation. It says:
We are writing to you today in support of the Aboriginal Land Rights (Northern Territory) Amendment (Delegation) Regulation 2013 (the "Regulation") and our strong belief that it should not be disallowed.
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A corporation may apply for these powers under subsection 28A(1) of the Act, but if the Regulation is not in place the Land Council is not required to respond in any set period. This means that the NLC would be able to refuse to ever make a formal decision on an application.
We have demonstrated that is the case. We have demonstrated that that is exactly what happens—and we have also already demonstrated that it was done with the full compliance of the previous minister. It is no wonder they are worried. They say: 'These are sorts of arrangements we need to move towards. We need to be able to make a decision on our own country.' How could that possibly be so repugnant, so difficult?
The letter goes on to say:
The Regulation is urgently needed to address this situation, and we fully support the Minister for Indigenous Affairs in this regard.
The statutory authority and responsibility of the NLC is not changed by this Regulation—
and it is not—
What the Regulation does is ensure that the NLC properly exercises that statutory responsibility on behalf of the people that it is meant to represent.
I could not have said it better myself. The responsibility of the land council is not something this place should have to create a regulation to remind them of. Three years and seven months! I do not really think that is procedural fairness for Aboriginal people. The letter continues:
It is unconscionable that an Aboriginal corporation, and the Aboriginal people, which it represents, may be denied any answer to their application—
thereby denying them procedural justice in their application—
and that the land council could refuse to fulfil its statutory duties and effectively shut down an application without giving any reasons for doing so.
Well, of course, that is an outrage, and it is what has happened. It happened on Labor's watch with the full concurrence of the minister at the time, which is inexplicable. Perhaps, Senator, in response, you might want to touch on some of those matters, because I am miffed that I only recently found out that the Labor Party, the minister and the government at the time knew on the same day—three years, seven months and 15 days ago—that this application had been made. Throughout that time, people were waiting for a response. She knew they were waiting for a response, and nothing was done.
The letter continues:
You have the full support of the Rirratjingu Aboriginal Corporation to pursue the continuation of this important Regulation to make certain that Land Councils cannot simply ignore Aboriginal Corporations as representatives of their constituents, and to ensure the proper operation of the Aboriginal Land Rights (Northern Territory) Act.
It is signed by Bakamumu Marika. He is also not the father of land rights, but his father is. This is the son of Roy Marika, a wonderful man I would have learned an awful lot more from if I had not had to sit next to him in his tractor and next to the exhaust while he was providing his wisdom to me, but I can tell you that I have a pretty clear understanding of what he thought land rights were. If you go upstairs to the bark petition on your way out, guys, you might check it out, because what it says is that people on country need to make decisions for themselves. The disallowance of this motion completely prevents that.
What we have here is a situation where consultation was done to remove a mischief. The mischief was clear. It was well known by the previous government—in fact, by the previous minister—that what the land council were doing to get around the law was to deny their own constituents procedural fairness. Their own constituents—the people who elected them to the council—and, I suspect, the members of the council, but I do not think that they have been told.
The other side would have us believe that this is not important. But I cannot imagine, with respect, Senator Siewert, when it came to access to justice, access to the law and access to procedural fairness, that you would not normally be the absolute champion of that first up. I am a bit disappointed—not so much over here—Senator Peris, at your decision, uninformed as it is, to remove procedural fairness and access to the law for your own people. You might be able to somehow befriend the land councils, but I think you are going to have to answer to the traditional owners who, all over the place, are saying, 'We've got a law. Why can't I get access to the law like anyone else?'
It is interesting that if somebody writes BHP a letter, for example, they would be required to write back. It is all part of a process. They just do not write back because that is cool; that is much better—'We just won't write back. It's the Greens. Forget it.' If it does not provide procedural fairness about a response, or something like that, we would all be outraged. But what outrages me more is that somehow because it is Aboriginal traditional owners it is okay, because they do not know anything, do they! They are not smart enough, really, the poor blackfellas; they cannot make up their own mind! I have never heard anything more patronising in this place. They simply can't make their mind up! 'We know best'—Labor know best—'and we don't want them to get access to this because they are not ready for it, are they?' I have never heard anything more disgracefully patronising in my life. I can tell you: we would never be applying it to white people in this place. You would all be crying, 'Access to justice! What about the law? Procedural fairness!' Why is it any different for my countrymen? Why is it any different for the people we represent? There is no difference, is there? So they have been selected on the basis of their race.
I will not make silly allegations about that particular matter, but it disappoints me so deeply that we sit here today with a law that people can access that is legitimate, they have a legitimate access to the law, and today we are about to move in this place to deny people a legitimate lawful right that was provided them in this place by this parliament. Again, I cannot say how disappointed I am that Aboriginal people are still not going to get access to justice, they are not going to get access to procedural fairness, and I think that the only thing that you can say is that—