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COMMONWEALTH OF AUSTRALIA

P A R L I A M E N T A R Y D E B A T E S

SENATE

Official Hansard

THURSDAY, 27 NOVEMBER 1997

THIRTY-EIGHTH PARLIAMENT FIRST SESSION—FIFTH PERIOD

BY AUTHORITY OF THE SENATE
CANBERRA

CONTENTS

THURSDAY, 27 NOVEMBER
Order of Business— Days and Hours of Sitting and Routine of Business . . . . . . . . . . . . . 9595 Leave of Absence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9595 Native Title Amendment Bill 1997— Second Reading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9595 Questions Without Notice— Native Title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9644 Aboriginal Reconciliation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9646 Native Title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9647 Arts Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9648 Native Title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9650 Native Title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9652 Native Title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9653 Greenhouse Gases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9653 Native Title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9655 Mr Robert ‘Dolly’ Dunn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9656 Answers to Questions Without Notice— Taxation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9657 Small Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9658 Fringe Benefits Tax . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9658 Commonwealth Bank of Australia . . . . . . . . . . . . . . . . . . . . . . . . . 9659 Current Account Data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9660 Travel Allowances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9660 Native Title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9661 Petitions— Logging and Woodchipping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9667 Food Labelling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9667 Uranium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9667 Logging and Woodchipping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9667 Native Title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9668 Native Title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9668 Dr James Tankey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9668 Notices of Motion— Afghanistan: Taliban . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9669 Senator Alan Ferguson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9669 Northern Territory Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9669 Regulations and Ordinances Committee . . . . . . . . . . . . . . . . . . . . . 9670 Asbestos-related Diseases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9671 Superannuation Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9671 Regulations and Ordinances Committee . . . . . . . . . . . . . . . . . . . . . 9671 National General Assembly of Local Government . . . . . . . . . . . . . . 9672 Disabled People: New South Wales . . . . . . . . . . . . . . . . . . . . . . . . 9673 Order of Business— Leave of Absence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9673 Finance and Public Administration References Committee . . . . . . . . 9673 Genetic Manipulation Committee . . . . . . . . . . . . . . . . . . . . . . . . . . 9673 Ms Jane Elliott . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9673 Housing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9673 AIDS Awareness Week . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9673 Committees— Community Affairs References Committee—Extension of Time . . . . 9674 Migration: Lithuania, Latvia and Estonia . . . . . . . . . . . . . . . . . . . . . . 9674 Oakajee Port and Industrial Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . 9674 Senate: Prayers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9675 Banking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9675 Greenhouse Gases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9675 Documents— Department of the Senate: Register of Senior Executive Officers’

CONTENTS—continued

Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9675 Auditor-General’s Reports—Report No. 15 of 1997-98 . . . . . . . . . . . 9675 Council for Aboriginal Reconciliation . . . . . . . . . . . . . . . . . . . . . . . 9675 Committees— Senators’ Interests Committee—Register . . . . . . . . . . . . . . . . . . . . . 9676 Regulations and Ordinances Committee—Statement . . . . . . . . . . . . . 9676 Regulations and Ordinances Committee—Paper . . . . . . . . . . . . . . . . 9679 Publications Committee—Reports . . . . . . . . . . . . . . . . . . . . . . . . . 9685 Public Works Committee—Reports . . . . . . . . . . . . . . . . . . . . . . . . 9685 Electoral Matters Committee—Membership . . . . . . . . . . . . . . . . . . . 9687 Judiciary Amendment Bill 1997— Copyright Amendment Bill (No. 2) 1997— Civil Aviation Legislation Amendment Bill 1997— First Reading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9687 Second Reading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9687 Bills Returned from The House of Representatives . . . . . . . . . . . . . . . 9693 Superannuation Contributions and Termination Payments Taxes
Legislation Amendment Bill 1997— Consideration of House of Representatives Message . . . . . . . . . . . . . 9693 Assent to Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9693 Native Title Amendment Bill 1997— Second Reading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9693 Adjournment— Child Immunisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9757 Cyber Democracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9758 Documents— Tabling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9760 Tabling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9760

  • SENATE
  • 9595

That leave of absence be granted to Senator Colston for the remainder of the 1997 sittings, on account of ill health.

Thursday, 27 November 1997

NATIVE TITLE AMENDMENT
BILL 1997
The PRESIDENT (Senator the Hon. Margaret Reid) took the chair at 9.30 a.m.,

and read prayers.

Second Reading
ORDER OF BUSINESS

Debate resumed from 25 November, on

motion by Senator Herron:

That this bill be now read a second time.

Days and Hours of Sitting and Routine of
Business

  • Motion (by Senator Ian Campbell) agreed
  • Senator COONEY (Victoria) (9.32 a.m.)—

There has been discussion in the last few days about the threat that native title might make to freehold tenure of land. Madam President, being an excellent lawyer yourself, as I understand—almost as good as my wife, Lillian Cooney, who has given me much instruction in this area—you would know that freehold land does not mean ownership of the land in the sense of a complete right over the land. If you have a freehold piece of property all sorts of other people have rights over that, whether they are tenants, next door neighbours or, indeed, the government as a whole—for example, you cannot grow opium poppies on your land. There are all sorts of relationships between the land that you own and other people. The very fundamental basis of the English law in so far as it relates to the ownership of land is that it is a system of tenure, that is, a system whereby people have rights in respect of a piece of land which others do not have or have rights in respect of a piece of land over which others may have to:

(1) That on Thursday, 27 November 1997:
(a) the hours of meeting shall be 9.30 am to
6.30 pm, 7.30 pm to 11.10 pm;

(b) the routine of business shall be:

  • (i)
  • From 9.30 am till 12.45 pm, govern-

ment business order of the day relating to the Native Title Amendment Bill 1997

  • (ii)
  • From 12.45 pm till 2 pm, govern-

ment business order of the day relating to the Native Title Amendment Bill 1997, second reading

(iii) At 2 pm, questions (iv) Motions to take note of answers

  • (v)
  • Petitions

(vi) Notices (vii) Postponement and rearrangement of business

(viii) Formal motions (ix) Presentation of documents

  • (x)
  • Government business order of the

day relating to the Native Title the same sorts of rights. The typical example

Amendment Bill 1997; and

given is that of the relationship between landlord and tenant, but there are others as well.

(c) At 10.30 pm, adjournment to be proposed.

(2) That the Senate shall meet on Friday, 28
November 1997 and that:

I have copies of documents here which relate to land law and the ownership of land in Victoria—I will not read the names out; that would not be right. One letter is headed ‘Heritage of Victoria’ and it reads:

Attached is my determination for the proposed works to a former building. I have decided to refuse the issue of a permit for the proposed works.
(a) the hours of meeting shall be 9.30 am to
4.25 pm;

(b) the routine of business shall be the government business order of the day relating to the Native Title Amendment Bill 1997;

(c) the question for the adjournment of the
Senate shall be proposed at 3.45 pm.

Heritage of Victoria is refusing a person who has the ownership of land a permit to carry out the sort of work he wants. There is the Town and Planning Country Act. Here I have a planning permit from a particular council

Leave of Absence
Motion (by Senator Harradine)—by

leave—agreed to:

  • 9596
  • SENATE
  • Thursday, 27 November 1997

The laws of a conquered country continue in force until they are altered by the conqueror.

which is allowing the development of dwellings but subject to a series of conditions which go on for page after page. These are just illustrations of the fact that tenure of land is uncertain by nature. It is true that we want to make it as certain as possible but no-one can, under our system of law, have a situation where their possession of land is absolutely certain.
All the High Court has been saying in Mabo and in Wik is that—that we inherited the law from English institutions which have come to us from England.

When Lieutenant Cook, as I remember he was when he took over Australia—

Senator Ferguson—I hope you don’t

remember him, Barney.
When people talk about there being uncertainty in the ownership of land—as have those opposite—they are talking about something that has not been created by native title. It has been created by the English legal system which we have adopted—and a very good system it is too. When people want certainty what they want is something that has not been guaranteed to any non-Aboriginal person who has come to Australia. It is something which they have never been guaranteed since that time and which the forerunner of our law, the English system, had never guaranteed anybody in England. You remember reading the stories of the knights, whose fealty was to the lord, villeins, and so on. That was an arrangement set up in respect of land. Nobody owned the land in the full sense of the word, but they had certain rights over the land. Why we want to change the system that has been operating all these years on this particular occasion is a little worrying. What we are talking about here—and it ought to be said again and again—is not a native system of land-holding; it is a common law system of land-holding that was brought to this country from England.

Senator COONEY—You would remember,

Senator Ferguson, that at six o’clock in the evening of Wednesday, 22 August 1770 Lieutenant Cook landed on Australian soil and took possession of it in His Majesty’s name and under his colours. He fired some volleys of shots and some cannons were fired from a ship. You would remember that incident. What he was doing was bringing English law to Australia. And what we are about now in our debate is not changing Aboriginal law, not changing indigenous law; we are attempting to change almost a thousand years of history, where English law set up this idea of tenure. That is what we are trying to disturb.

When we talk about uncertainty, it is uncertainty in that law, and may I suggest that it is unfair to blame the indigenous people for uncertainty when that uncertainty has been there since Captain Cook fired his cannon on that Wednesday. It is wrong for us to propound in this debate that we are trying to get rid of an uncertainty that was introduced by Aboriginals when in fact it was introduced by the British system of law.
It is interesting to refer to the case of Campbell v. Hall, because it set out five principles which I think are worth keeping in mind as we are having this debate. It said that where England conquers a country, takes over a country, as it has in Australia, there are certain principles followed. I will go through some of them. The second principle is this:

Senator EGGLESTON (Western Australia)

(9.40 a.m.)—The Native Title Act 1993 is not working. The act that was supposed to create an atmosphere of certainty for indigenous Australians, for leaseholders, pastoralists and miners has failed because the Keating government failed to devise a satisfactory process of determination, which has resulted in uncertainty, animosity, cynicism and excessive legal costs for the parties involved and has stalled development in rural and regional Australia.

The conquered inhabitants, once received under the King’s protection, become subjects, and are to be universally considered in that light, not as enemies or aliens.

In other words, they become full citizens. The fifth principle is this:
The problems arising from the 1993 Native Title Act include multiple claims, because

  • Thursday, 27 November 1997
  • SENATE
  • 9597

  • there is no adequate threshold for the right to
  • The Howard government’s 10-point plan

negotiate, no limitation on the number of addresses the concerns raised by Justice claims that can be made on the same land and French and so many others about the need to no time limit on the lodgment of claims. This streamline the processes of the Native Title means, in effect, that native title claims could Act to provide not only fair and just terms but be made forevermore, which underlines the certainty for all stakeholders. The successful need for a sunset clause to be included in the passage of this bill will mean that native title legislation. Any Aboriginal group with a rights are protected by law and will ensure legitimate claim to any land in Australia that just compensation is available through the should be well aware of it now, and in my indigenous land fund. It will mean that Ausview there should only be a relatively short tralian farming families and pastoral families period of grace for further claims to be have the certainty they need to continue

  • lodged.
  • running their properties. It will ensure certain-

ty for developers and mining companies, who, I add, currently generate more than $40 billion a year, which is essential for jobs and economic growth in this country, especially for rural and regional Australia.
There is now plenty of evidence that senior ALP figures anticipated that the Native Title Act would not work when it was introduced in 1993 and that the processes provided would have to be changed. Gareth Evans, no less, made this admission recently at an AMEC lunch at the Novotel Langley Hotel in Perth, which I attended. The failure of the processes set up under the Native Title Act is illustrated by the fact that to date there have been over 660 applications for determination of native title covering about 45 per cent of Australia, and out of these 660-plus applications only one has been resolved.
Native title is a particular issue in Western Australia, because the state of Western Australia is currently subject to application for claims which cover over 82 per cent of it. Western Australia provides 31 per cent of this nation’s mineral resources, which accounts for some 40 per cent of Australia’s exports. The uncertainty for infrastructure development and resource exploration, especially in the northwest of Western Australia, and the importance of such developments to the national economy comprise one of the major reasons to support the Howard government’s 10-point plan which, as I say, will bring certainty and rationality to this matter while protecting the interests of Aboriginal communities, pastoralists, miners, and developers.
This illustrates as nothing else could the unworkability of the 1993 Native Title Act.

These problems of unworkability have been clearly recognised in the comments of the President of the Native Title Tribunal, Mr Justice Robert French, who stated on 10 March 1997:

Difficulties in the operation of the right to negotiate procedure relate to the ease with which a claimant can be registered and the absence of any requirement that the claimant or claimants consult with the relevant group of native title holders about the lodgment of the claim or any agreement that may be made under the procedure for which the Act provides. Overlapping claims . . . are commonplace. A significant number of claims is brought outside the framework of official representative Aboriginal bodies.

I would like to illustrate how the present Native Title Act has affected ordinary people in some of the towns of the north west by causing delays in the provision of infrastructure and land for housing which have resulted in rising costs for housing, as demand outstrips supply. For example, in Port Hedland, in the light industrial area of Wedgefield, 40 lots have been delayed for light industrial
Those are the words of the President of the development. The significance of this is that Native Title Tribunal, Mr Justice Robert the Wedgefield light industrial area is close to French. His comments reflect the limitations the massive HBI plant, which BHP is conof the current process of native title determi- structing in Port Hedland at a cost now nations, which, as I will explain, are reflected running to $2.5 billion. Because no land is in what is happening with native title claims available for light industrial sites, contractors

  • throughout Western Australia.
  • have not been able to establish bases in the

  • 9598
  • SENATE
  • Thursday, 27 November 1997

town. This not only has been inconvenient for housing have increased exponentially. Broome these contractors but also has added enor- has enormous potential as a tourist resort, and

  • mously to the cost of their operations.
  • there is an enormous demand from developers

for land both for residential purposes and tourist facilities. But, again, due to the processes of the 1993 Native Title Act, no land can be released for these purposes which, in turn, means that no building is occurring and no new jobs are being created.
The only serviceable land by the ocean for housing development in Port Hedland is at Pretty Pool. But native title claims have prevented the development of a block of 152 lots which would have gone a long way to solving the housing shortage in the town.

  • Similarly, in South Hedland, native title has
  • I would like to say a little about regional

prevented the release of land for new subdivi- development and native title in the north of

  • sions for housing for workers.
  • Western Australia. There are over 40 native

title claims in the Kimberley, with some of the claims extending offshore. Not surprisingly, none of these claims has been determined due to the failure of the processes of the present act. But, until these claims are determined, no development can occur.
As a result, because of the inflow of workers for the huge BHP developments in the town, housing is at a premium, and purchase and rental prices are incredibly high. For example, a four-bedroom house in Pretty Pool or Cooke Point rents commonly for $1,000 a

  • week; in South Hedland, the same kind of
  • In Kununurra, there have been no new land

house will rent for a mere $500 to $800 a releases made in the town or surrounding week. The cheapest rental for a flat in the areas since the introduction of the Native Hedland area is now around $300 a week. I Title Act in 1993 other than a single farming emphasise that this is not Manuka, Toorak or block—and that resulted in extensive litigaPeppermint Grove, but Port Hedland—an tion. A major residential subdivision involving industrial town located 1,000 miles north of 200 lots has been delayed due to the impact Perth, surrounded by endless millions of of native title. In addition, 22 light industrial hectares of empty land which cannot be lots, 10 horticultural lots, a commercial centre subdivided for housing developments because and a tourism site have not been able to go of the existing processes of the Native Title ahead due to the processes of the existing

  • Act.
  • Native Title Act.

  • A similar picture applies in the Shire of
  • The progress of the Ord River development

Roebourne where massive developments are stage 2 has also been hindered by delays due scheduled in the next five years, including the to native title claims. The expansion of the expansion of the North West Shelf gas pro- Ord River project, which will provide for an ject, the establishment of a petrochemical additional 65,000 hectares of land in the north plant and secondary downstream processing of Western Australia extending into the of iron ore. These developments, worth Northern Territory, has been subject to three billions of dollars, will be held up if land for native title applications over the proposed housing for workers is not available, again, expansion area; and the prospect of proceedbecause of the processes of the present Native ing through the formal native title process Title Act. The Shire of Roebourne’s principal looms as the biggest deterrent for a successful planner has commented that, ‘if the land does outcome for this development. Native title not become available and prices remained as will unquestionably significantly affect whethhigh, it would be hard to convince companies er or not this project progresses. not to have fly-in fly-out operations’. ‘Fly-in
I now turn to the pastoral industry, which

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  • A Handbook of Australian Government and Politics 1965-1974 This Book Was Published by ANU Press Between 1965–1991

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    A Handbook of Australian Government and Politics 1965-1974 This book was published by ANU Press between 1965–1991. This republication is part of the digitisation project being carried out by Scholarly Information Services/Library and ANU Press. This project aims to make past scholarly works published by The Australian National University available to a global audience under its open-access policy. COLIN A. HUGHES A Handbook of Australian Government and Politics 1965-1974 AUSTRALIAN NATIONAL UNIVERSITY PRESS CANBERRA 1977 First published in Australia 1977 Printed in Australia for the Australian National University Press, Canberra, at Griffin Press Limited, Netley, South Australia © Colin A. Hughes 1977 This book is copyright. Apart from any fair dealing for the purpose of private study, research, criticism, or review, as permitted under the Copyright Act, no part may be reproduced by any process without written permission. Inquiries should be made to the publisher. National Library of Australia Cataloguing-in-Publication entry Hughes, Colin Anfield. A handbook of Australian government and politics, 1965-1974. ISBN 0 7081 1340 0. 1. Australia—Politics and government—Handbooks, manuals, etc. I. Title. 320.994 Southeast Asia: Angus & Robertson (S.E. Asia) Pty Ltd, Singapore Japan: United Publishers Services Ltd, Tokyo Acknowledgments This Handbook closely follows the model of its predecessor, A Handbook o f Australian Government and Politics 1890-1964, of which Professor Bruce Graham was co-editor, and my first debt is to him for the collaboration which laid down the ground rules. Mrs Geraldine Foley, who had been the principal research assistant for the original work, very kindly fitted in work on electoral data with her family responsibilities; once more her support has been invaluable.