ABC RADIO NATIONAL BREAKFAST WITH FRAN KELLY
Interview

9 April 2009

Topic: Native Title; Bikie Gang Laws.

KELLY: Well, a tough and sometimes cruel system, that's what Tom Calma called Australia's Native Title system. Tom Calma is the Aboriginal and Torres Strait Island Social Justice Commissioner. Another description of native title comes from the Chief Justice of the High Court, Robert French. He calls it, quote, a kind of statutory fossil bed for the common law, end of quote. Calls for a shake-up of native title are outlined in the latest edition of the Australian Law Reform Commission's journal, Reform.

For his view on this, we're joined by the Federal Attorney-General, Robert McClelland.

Minister, good morning.

McCLELLAND: Good morning.

KELLY: Minister, the Native Title system is bogged down in technicalities, delays and cost blowouts. Many of the 477 outstanding claims were lodged five years, even 10 years ago. Is this system broken?

McCLELLAND: Well, it's not broken, but it certainly needs a lot of work.

It's one of the areas which has been slow moving for me to achieve reform, and there's a number of issues: there's some procedural matters; and there's some attitudinal matters. But I think it's obviously the case we could do better.

We spend about $120 million a year on the Native Title system, which is money that isn't going into other resources: health, education, employment opportunities. So, we have an obligation to make sure it does work better and achieves real outcomes for Aboriginal and Torres Strait Islander people.

KELLY: It's had problems from the start, but more than 12 months ago – I mean, you can see it's been slow moving for you, but a year ago, you said that tinkering at the edges of native title reform is not enough. Do you have a reform agenda in mind? Do you have any big changes in mind?

McCLELLAND: Well, we've introduced legislation to enhance the mediation process.

The Federal Court will be in control of the mediation, but the mediators will be able to compel the attendance of people before them to direct that they negotiate in good faith, and then report to the court.

We've also enabled the court to refer particular issues to an expert to effectively provide a report to the court. Those experts won't be bound by the rules of evidence, and they'll be able to focus on particular anthropological evidence, and so forth. So, we think that will streamline it, as well as receiving a lot of cooperation from the court.

For instance, the Federal Court in South Australia is really driving heavily six claims down there. One has recently been resolved, the largest claim ever, and six others are in the pipeline where things are really moving.

The danger with wholesale amendment, or, if you like, recreating another system is that, firstly, you've got at least 12 months of very controversial political debate in the Parliament, and then you've got about two years to settle it down in ongoing litigation on the new legislation.

KELLY: I guess that's no reason for not trying to do it? It is a complex area of law, it's always been complex, it's always been fought politically. You know, the Howard Government changed it all back in '98, I think it was, when they brought in so-called bucket loads of extinguishment, which upset the Indigenous components of this law system.

But when you look at the complexities of native title law now, does anything strike you as a simple thing that needs to be fixed?

McCLELLAND: I think we could do more by way of recognising association, which is at a level that is short of native title.

In other words, a lot of the really productive negotiations achieve outcomes despite a determination of native title, almost ignoring that issue. In other words, a party generally accepts that there is that ongoing association. Having accepted that, they then move into productive outcomes.

I certainly think there is an argument for looking at a formal recognition of association without getting into the technicalities of whether there has been a displacement at some period of history that may deprive them of that opportunity to negotiate ongoing benefits for their communities. That is certainly one area that we're exploring and getting advice on.

KELLY: Another big change would be a shift in the burden of proof. The High Court Chief Justice, Robert French, has suggested that there be a presumption in favour of the existence of native title rights and interest. Now, that would be a major shift. Are you attracted to that?

McCLELLAND: Our mind is open. In one sense, that's not inconsistent with the legal doctrine of presumption of regularity. In other words, if someone is the occupier of premises, you assume that they have title to those premises. In some ways, that's consistent with those principles. These, again, are issues that we're prepared to explore.

KELLY: Attorney-General, way back in December 1993, when the Native Title Act passed Federal Parliament, then Prime Minister Paul Keating promised a related social justice package, in part, to compensate those who've had their native title rights denied or lost through dispossession.

That package has not been delivered. Do you accept that that has yet to come and do you plan to honour that commitment?

McCLELLAND: Well, that's a really good point, because bear in mind that native title is only of benefit to those who haven't suffered the injustice of being removed from their traditional lands.

Native title does little, if anything, for those vast numbers of Aboriginal and Torres Strait Islanders who have actually been dispossessed sometimes as a result of an injustice in our history and Paul Keating's comments were to do something generally about that.

So, in terms of the Indigenous Land Corporation, Jenny Macklin and I are doing a lot of work. Jenny, in particular, is looking at how we can more productively use the resources that have accumulated there, and they're not insubstantial, to deliver some real outcomes. That's work in progress, but a very, very important area where there are quite considerable resources which we think could be applied more productively in terms of outcomes, but also in terms of delivering some real benefits. Obviously, there have been some good examples, but we would like to increase those.

KELLY: Minister on another issue, the Standing Committee of State and Territory Attorneys-General is meeting next week. Coordinated action on bikie gangs and organised crime is on the agenda. Does the Commonwealth have a role in this area? Can you do something to help? Certainly, something needs to be done by the looks of things?

McCLELLAND: I think it's important that there's national consistency, because if you don't have national consistency, well you'll simply see these gangs going to the weakest point. So I think we need rational legislation that actually is effective and consistent. We'll be working through that.

But at a Federal level, we can do things, such as looking at the Federal Evidence Act to recognise proscription across the board if it's made in one State, and we can also look at trying to rationalise and standardise the confiscation of the proceeds of crime legislation that applies around the country. I think that's very important, so you don't get safe havens for people depositing the proceeds of their crime.

KELLY: Just briefly, what about something like telephone intercept law? There's been a call for that.

McCLELLAND: The law generally applies when offences carry seven years jail. The law enforcement agencies are generally permitted to intercept in those circumstances. These offences of membership of associating with a proscribed organisation can be five years, so I anticipate that issue will be raised as well.

KELLY: Okay, Robert McClelland, thank you very much for joining us.

McCLELLAND: That's my pleasure.

[Ends]