Introduction
Background
1.1 The Native Title Bill was developed in 1993 as part of the Commonwealth
response to the High Court decision known as Mabo (No2) [1]; the other two elements of the response
were to be the Land Fund and the proposed Social Justice Package. Not
only did the bill emerge from a process of consultations, but it was
subject to exhaustive consideration by the Parliament. The Senate took
almost 52 hours to deal with the bill, 149 amendments being moved, of
which 119 were adopted.
1.2 Given the background to the bill's development and its extensive
amendment in the Senate, it was to be expected that the legislation
could be improved subsequently, especially given that it was responding
to a new concept in common law. This has proven to be the case. The
Keating Government introduced the Native Title Amendment Bill 1995 on
29 November 1995; it proposed amendments to deal with a significant
High Court judgement (Brandy) [2]
and some miscellaneous matters. That bill lapsed with the dissolution
of the House of Representatives on 29 January 1996.
1.3 The major problems concerning the Native Title Act 1993 (the Act),
then, confronted the Coalition Government when it assumed office in
March 1996: at the least, the difficulties which the Native Title Amendment
Bill 1995 had addressed remained, and the Native Title Amendment Bill
1996 was consequently developed. When introduced into the House of Representatives
on 27 June 1996 the bill was referred for an advisory report to the
Parliamentary Joint Committee on Native Title and the Aboriginal and
Torres Strait Islander Land Fund.
1.4 On 17 October 1996 the Government introduced a second round of
amendments (called the 'Exposure Draft') into the House of Representatives
which resolved to refer them to the Joint Committee for an advisory
report, together with the original bill, by 18 November 1996.
Appendix 4 (Schedule Comparing the the
Native Title Amendment Bill 1995 and the Native Title Amendment Bill 1996).
The Committee's Approach
1.5 This Committee was established pursuant to s.206 of the Act to
perform a range of specified duties; those duties include extensive
consultation, reporting to Parliament about the operation of the Act,
examining relevant annual reports, and inquiring into the effectiveness
of the National Native Title Tribunal and other matters. In the manner
that it has adopted towards fulfilling those duties the Committee in
effect has accepted an additional duty: to assist a wider understanding
of native title and of the legislation.
1.6 Ever since the introduction of the Native Title Bill 1993, the
native title legislation has been widely considered to be complex and
difficult to comprehend. Even some of Australia's most eminent academic
lawyers have expressed this complaint. [3]
While it is one of the more complex Acts, its difficulty perhaps emanates
from lack of familiarity with the concept of native title.
1.7 In preparing its report the Committee is aware of its self-imposed
obligation to clarify the issues which it is required to examine. It
is for this reason that this report treats in subject order matters
dealt with in the Native Title Amendment Bill 1996. It concentrates
on the principles that the Committee endorses about native title and
comments from that perspective on the Native Title Amendment Bill 1996
(and Exposure Draft amendments). It also covers aspects of the Government's
May 1996 paper Towards a More Workable Native Title Act (the first Outline
document) and the October 1996 Outline of Proposed Amendments to the
Native Title Amendment Bill 1996 (the second Outline document). Comment
on the first Outline document responds to a resolution of the Senate
dated 20 June 1996. (Although the Committee has received evidence concerning
the Land Fund, that matter is not covered in this report because it
is not the subject of proposed amendments to the Act.)
Proceedings
1.8 In order to benefit from the widest range of views on the proposed
amendments to the Act, the Committee advertised the reference (and invited
submissions) on 10/11 and 12 August. All respondents to these advertisements
were invited to provide their views in writing; some were also invited
to present evidence at the public hearings conducted by the Committee
as follows:
| 26 August - Brisbane
27 August - Cairns
28 August - Darwin
29 August - Kununurra
30 August - Broome
31 August - Perth
30 September - Alice Springs
|
1 October - Adelaide
2 October - Melbourne
3 October - Launceston
4 October - Sydney
14 October - Canberra
17 October - Canberra
28 October - Canberra
|
A list of these hearings and the witnesses who provided evidence is
at Appendix 1. It is notable that some fourteen public hearings were
held on this matter. In comparison, the Senate Standing Committee on
Legal and Constitutional Affairs which inquired into the Native Title
Bill 1993, held public hearings on five days in December 1993.
1.9 In addition to the written submissions and oral evidence provided,
the Committee also had access to a wide range of relevant documentation.
This included some submissions that had been sent to Senator the Hon
Nick Minchin, Parliamentary Secretary to the Prime Minister; they concerned
the Government's first Outline document as well as several papers prepared
for other purposes but which were provided to the Committee. Submissions
presented to Senator Minchin are regarded as private by the Government
and were not released to the Committee. Nevertheless several submissions
provided to Senator Minchin were also given to the Committee. Although
the Committee does not publish material from those documents in this
report, they have been of assistance in forming the Committee's views
on the Amendment Bill and the Outline documents. Similarly, all public
evidence presented to the Committee has been carefully considered in
the preparation of this report.
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Appreciation
1.10 The Committee has always adopted the approach that native title
is of profound national significance: the Committee's duties under the
Act are correspondingly important. Without the active contribution of
those involved in native title, however, the Committee would not be
able adequately to fulfil its role. An expression of gratitude, then,
is due to all Indigenous and other people with whom the Committee has
met, to all who have provided written submissions and to those who have
given evidence at public hearings. Without those contributions the Committee
would have been unable to fulfil its first duty 'to consult extensively
about the implementation and operation' of the Act under s.206(a).
1.11 The Committee understands that some important submissions are
still in preparation. In order for that material to be accepted and
taken into account before the Amendment Bill is debated, the Committee
considers that this reference should continue for another month.
Recommendation 6 [4]
| That the Native Title Amendment Bill 1996 and
Exposure Draft proposals be referred to this Committee for further
consideration and report by 13 December 1996. |
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Footnotes
[1] Mabo v Queensland (No2)(Mabo 2)(1992)
175 CLR 1.
[2] Brandy v Human Rights and Equal Opportunity
Commission (1995) 183 CLR 245.
[3] For example, Sir Harry Gibbs (formerly
Chief Justice of the High Court) has stated 'It is complex in form and
some of its provisions are obscure while others are of doubtful validity'
in Mabo: The Native Title Legislation, M.A. Stephenson (ed), p. xiii.
[4] Recommendations 1 to 5 are contained in
previous Committee reports.
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