CHAPTER 3

Seventh Report of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund

SECOND MINORITY REPORT
CONTENTS

CHAPTER 3

The Proposed RDA Clause

3.1 In Chapter 2 of the First Minority report we proposed to amend the Native Title Amendment Bill 1996 to include a clause with the purpose of ensuring that amendments effected by that bill would be subject to the RDA. The Government has argued that such a clause would create uncertainty. [1] We do not accept this.

3.2 The clause would actually promote certainty - certainty that Australia intends to uphold its international treaty obligations under the Convention and certainty that the Government intends to abide by its commitment not to breach the principles in the RDA. [2]

3.3 Even if the clause were unclear in its interaction with other amendments, such uncertainty may already exist. Mr Basten QC advised the Committee:

In short, the Government's proposed amendments could erode the constitutional foundations of the RDA. In order to protect the constitutional validity of the RDA, the High Court may prefer to find that the amendments are invalid. The alternative would be for the amendments to stand and the RDA to fall; however, this highly undesirable result would be avoided if the RDA clause proposed by us was accepted.

3.4 As a matter of common sense the Government's resistance to the RDA clause suggests that it believes that the amendments, or some of them, are at variance with the RDA. Why else would the Government reject a clause which guarantees its undertaking that the amendments will not breach the principles in the RDA?

3.5 In summary, the proposed RDA clause would:

Mr Daryl Melham MP

Mr Harry Quick MP

Senator Chris Evans

Senator Cheryl Kernot

Senator the Hon Margaret Reynolds

Footnotes

[1] Evidence pp.3602-3604.

[2] See par. 2.2 of the First Minority Report.

[3] Evidence p.3609.