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:
Immediately one starts to interfere with the scope, purpose and intent
of the Racial Discrimination Act, there is very live danger that the High
Court will at some stage say, 'The Act no longer accords sufficiently
closely to the terms of the Convention and, therefore, either the amendments
to it express or implied will be invalid or the whole Act itself will
be invalid.' [3]
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:
promote certainty that the amendments do not breach the RDA or the Convention;
protect the RDA against possible constitutional invalidity; and
hold the Government to its promise that the amendments are consistent
with the RDA.
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.
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